Pathania v. District Council 37 (Local 1503) et al

Filing 43

ORDER re 42 Order on Motion for Summary Judgment. The order 42 granting in part and denying in part defendant's motion for summary judgment 17 was inadvertently docketed without date and signature. Accordingly, that order should be disregarded, and the attached order shall serve as its replacement. Ordered by Magistrate Judge Joan M. Azrack on 3/21/2013. (Weiner, Amy)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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AJAY PATHANIA,
Plaintiff,

For Online Publication Only

MEMORANDUM
AND ORDER
CV–11–2119 (JMA)

-againstMETROPOLITAN MUSEUM OF ART,
Defendant.
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APPEARANCES:

Stewart Lee Karlin
The Law Offices of Stewart Lee Karlin, P.C.
9 Murray Street, Suite 4W
New York, NY 10007
Attorney for Plaintiff
Richard Harris Block
Jessica Wescott Catlow
Mintz Levin Cohn Ferris Glovsky & Popeo PC
666 Third Avenue
New York, NY 10017
Attorneys for Defendant Metropolitan Museum of Art

AZRACK, United States Magistrate Judge:
On July 27, 2012, plaintiff Ajay Pathania (“plaintiff”) and defendant Metropolitan
Museum of Art (the “Museum”) consented to my conducting all proceedings in this case,
including trial, the entry of final judgment, and all post-trial proceedings. ECF No. 29. Now
before me is the Museum’s motion for summary judgment, in which the Museum argues that no
genuine issue of material fact remains as to plaintiff’s claims for (1) violations of Title VII of the
Civil Rights Act of 1964 (“Title VII”) and (2) breach of the Collective Bargaining Agreement
(CBA) between the Museum and District Council 37 (Local 1503) (the “Union”), and that those

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claims fail as a matter of law. For the reasons discussed in this memorandum, the Court grants
the Museum’s motion as to plaintiff’s claims of discrimination in violation of Title VII,
retaliatory termination in violation of Title VII, and breach of the CBA, but denies the Museum’s
motion as to plaintiff’s claim of retaliatory deprivation of overtime work in violation of Title VII.
I.

BACKGROUND

A. Procedural History
On April 5, 2011, plaintiff, a former Museum employee and Union member, filed an
amended complaint (the “Complaint”) in New York State Supreme Court, Richmond County,
against the Museum and the Union. Compl., Pathania v. Dist. Council 37, No. 101485/2011
(N.Y. Sup. Ct. Richmond Cty.), ECF No. 1. At the time, plaintiff was pro se. In his Complaint,
plaintiff alleges that the Museum and the Union (i) discriminated against him based on his
national origin, in violation of Title VII, Compl. ¶¶ 4, 8, 10–11; (ii) retaliated against him for
complaining about discrimination, also in violation of Title VII, id. ¶¶ 4, 6–7, 10–11; and (iii)
breached the CBA between the Museum and the Union. Id. ¶¶ 8–9; McDowell Decl. Supp. Mot.
Summ. J. (“McDowell Decl.”) Ex. B, ECF No. 22.
The Museum filed a Notice of Removal to this Court on April 29, 2011. ECF No. 1. The
Union moved in State court to dismiss the Complaint and did not join in the Museum’s Notice of
Removal. On June 23, 2011, the Honorable Philip Minardo granted the Union’s motion and
dismissed the Complaint against the Union with prejudice. Order, Pathania v. Dist. Council 37,
No. 101485/2011 (N.Y. Sup. Ct. Richmond Cty. June 23, 2011).
On January 3, 2012, attorney Stuart Karlin filed a Notice of Appearance stating that he
would be representing plaintiff. ECF No. 11. Plaintiff did not amend the Complaint after
obtaining counsel. On June 27, 2012, the Museum filed the instant summary judgment motion,

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ECF Nos. 17–22, 25–28, 30–31, 34–37, 39–41, and on July 27, 2012, plaintiff and the Museum
consented to my conducting all proceedings in this case, including entering final judgment.
On January 15, 2013, plaintiff filed a notice requesting that the Clerk of the Court correct
the caption to reflect that the Union is not a party to this action. ECF No. 32. On January 22,
2013, the Museum consented to plaintiff’s request, and I directed the Clerk of the Court to
terminate the Union as a party. ECF No. 33. On February 13, 2013, I entered an order amending
the caption to reflect the Union’s termination from the case.
B. Plaintiff’s Employment at the Museum
Plaintiff, an individual of Indian descent, is a former “Maintainer” in the Museum’s
Plumbing Shop, which is part of the Museum’s Buildings Department. McDowell Decl. ¶ 26.
The Museum originally hired Plaintiff to work from 1:00 PM to 9:00 PM, Tuesday through
Saturday.

Suppl. Decl. James Noone Supp. Mot. Summ. J. (“Noone Suppl. Decl.”)

¶ 5, Ex. A, ECF No. 37. However, for a brief period before December 4, 2007, plaintiff worked
from 3:00 PM to 11:00 PM on Tuesday through Friday and from 1:00 PM to 9:00 PM on
Saturday. Id. As of December 4, 2007, plaintiff worked from 1:00 PM to 9:00 PM, Monday
through Saturday. Id.
1. Plaintiff’s October 9, 2007 Complaint to the Museum
On October 9, 2007, after making several verbal complaints that employees were
smoking in the Plumbing Shop, plaintiff addressed a written complaint to the Museum’s Human
Resources department; Debra A. McDowell, the Museum’s Vice President for Human
Resources; Debroah Gul Haffner, the Museum’s Environmental Health and Safety Manager; and
James Noone, the Museum’s Manager of Employee Relations/Labor Relations, alleging that
employees were smoking in the Plumbing Shop, which affected plaintiff’s breathing. October 9,

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2007 complaint (“10/9/07 Complaint” or “10/9/07 Compl.”), Block Decl. Supp. Mot. Summ J.
(“Block Decl.”) Ex. D, ECF No. 21; Pl. Dep. 14:17–22, 15:8–16:8, 11/22/11. Plaintiff is allergic
to smoke. Pl. Decl. Opp’n Mot. Summ. J. (“Pl. Decl.”) ¶ 4, ECF No. 26. In addition, plaintiff
alleged that he had made verbal complaints concerning the smoking to Plumbing Shop
supervisor Edward Monuszko, and that Monuszko later called him a “rat” and a “cabdriver.” Pl.
Dep. 16:9–15, 11/22/11; 10/9/07 Compl. This was the first time plaintiff informed Human
Resources of Monuszko’s comments. Pl. Dep. 22:11–15, 11/22/11.
Plaintiff interpreted “cab driver” as discriminatory because “all the Indian people, they
drive cabs.” Id. 19:3–4.
Plaintiff testified that on one occasion, when he attempted to accompany Monuszko to a
job, Monuszko said “no we don’t want rats coming with us.” Id. 16:24–17:2. Plaintiff further
testified that “They wrote it down, this was posted, memo was posted. They wrote it down on
every board I’m a rat.” Id. 17:3–5. Plaintiff’s interpretation of what Monuszko meant by “rat”
is “Rat meaning you ratting us out. Why you complaining? We’re here for 17 years doing
whatever we want.” Id. 17:17–21.
Upon receiving plaintiff’s 10/9/07 Complaint, Noone began an investigation. Noone
Decl. Supp. Mot. Summ J. (“Noone Decl.”) ¶¶ 4–5, ECF No. 20. Monuszko denied calling
plaintiff a “rat” or a “cabdriver.” Id. ¶ 5. The record contains contradictory statements about
whether Noone interviewed Richard Kletzky, a Caucasian who worked as an Assistant
Maintainer in the Plumbing Shop and may have witnessed Monuszko’s comments. Noone states
that he interviewed Kletzky, who denied ever hearing Monuszko or anybody else at the Museum
make the comments.

Id. ¶ 6.

Kletzky, in contrast, states that Noone never approached,

interviewed, or interrogated him “regarding any indoor smoking related violation or

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investigation.” June 20, 2010 letter from plaintiff to Jeanette M. Jimenez App’x B, Suppl. Decl.
of Richard H. Block Supp. Mot. Summ. J. (“Block Suppl. Decl.”) Ex. B, ECF No. 36. Noone
nevertheless warned Monuszko that making such comments was prohibited and could lead to
disciplinary action. Noone Decl. ¶ 5.
Plaintiff testified that Monuszko commented that Indians “blow up buildings” and made
numerous other, unspecified, discriminatory comments when nobody else was present. Pl. Decl.
¶¶ 10–11; Pl. Dep. 19:20–25, 28:11–16, 11/22/11. When asked how many times Monuszko said
something discriminatory to him, plaintiff testified, “Anytime he sees me alone
. . . . Every time he see in the evening, he just pass comments.” Pl. Dep. 28:11–16, 11/22/11.
Plaintiff never reported the comment about blowing up buildings, or any additional comments, to
Museum management. Id. 19:20–25.
2. Plaintiff’s April 21, 2008 Complaint to the Museum
On April 21, 2008, plaintiff filed another written complaint, this time with Michael
Gillmartin, the Museum’s Chief Engineer, alleging that Monuszko was retaliating against
plaintiff for filing the 10/9/07 Complaint. April 21, 2008 complaint (“4/21/08 Complaint” or
“4/21/08 Compl.”), Block Decl. Ex. E; Pl. Dep. 29:3–13, 11/22/11. Plaintiff alleges in the
4/21/08 Complaint that:

(1) After he filed the 10/9/07 Complaint, Monuszko assigned him

“very little to no[]” overtime work while assigning others more overtime work; (2) On October
18, 2007, Monuszko, Kletzky, and Mike Playas each logged approximately 7.5 overtime hours,
whereas plaintiff was offered only three overtime hours; (3) On January 7, 2008, Monuszko
offered overtime hours to Playas but not to plaintiff; (4) On February 2, 2008, Rawle Campbell,
who was a “helper” and not a Maintainer, was asked to cover for Maintainer Frank Pizzolo, even
though it would have been more appropriate to offer the overtime to plaintiff because plaintiff

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was a Maintainer; (5) On April 16, 2008, Monuszko awarded Pizzolo ten hours of overtime
during plaintiff’s shift; (6) Plaintiff “felt isolated from the rest of the shop” because Monuszko
was “giv[ing] me the silent treatment which has created a very uncomfortable working
environment”; and (7) On April 6, 2008, after a Union representative contacted Monuszko
regarding plaintiff’s “overtime matter,” Monuszko asked plaintiff why he was escalating matters
to the Union, accused plaintiff of trying to take away Monuszko’s overtime hours, and stated that
as the one wearing the “white shirt,” Monuszko could do overtime whenever he wanted. 4/21/08
Compl.; see also Pl. Decl. ¶ 9; Suppl. Pl. Decl. Opp’n Mot. Summ. J. (“Pl. Suppl. Decl.”) ¶¶ 9,
12, 13, 15, ECF No. 41.
When asked why plaintiff found Monuszko’s comment about wearing a “white shirt”
discriminatory, plaintiff stated he believed Monuszko was saying “You can’t do nothing to me
. . . . You can’t do absolutely nothing to me . . . . I’m the one wearing white shirt, I can do
whatever I want.” Pl. Dep. 30:8–16, 11/22/11.
In his 4/21/08 Complaint, plaintiff also includes a chart of unknown origin, titled
“Average Weekly overtime booked,” which, without specifying any particular time period, states
that plaintiff’s average was three hours, whereas Monuszko, Playa, Pizzolo, and Kletzky’s
averages were thirty, fifteen, fifteen, and twenty-two hours, respectively, and that Campbell had
declined several overtime offers. 4/21/08 Compl. at 2. If plaintiff created this chart himself, he
provides no basis for his personal knowledge as to other employees’ weekly overtime averages.
The record contains no evidence concerning how the Museum responded to plaintiff’s
4/21/08 Complaint.
Plaintiff also testified that Monuszko phoned him and said, “Let me give you some
advice. I’m the one who run the show here, you always remember that,” and plaintiff found this

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discriminatory “because he threaten me all the time, nobody else. All the white guys stay on the
side.” Pl. Dep. 33:13–20, 11/22/11. Plaintiff never reported this phone call to management and
does not specify when it occurred. When asked if he believes Monuszko would have done this if
plaintiff had not filed “the complaint about the smoking policy,” plaintiff responded, “[N]o, I
don’t think so. He just retaliate because he is mad.”

Id. 33:21–25.

3. Plaintiff’s Verbal Complaints in 2008 and 2009 to Supervisor David Gomez
Plaintiff did not file any additional complaints with the Museum that explicitly alleged
discrimination or retaliation.

However, he testified that throughout 2008 and 2009, he

“occasionally” told supervisor David Gomez that Monuszko “continued to retaliate against me
because I complained about derogatory and discriminatory comments and that he continued to
make discriminatory comments.” Pl. Decl. ¶ 12. Plaintiff does not specify when in 2008 and
2009 he made these verbal complaints to Gomez, what retaliation and discriminatory comments
he reported to Gomez, or how Gomez responded.
4. Plaintiff’s Grievance Forms in 2008 and 2009 Concerning Overtime Denial
In 2008, plaintiff filed three grievance forms with Gomez, “Management,” and the Union
alleging that plaintiff was deprived of overtime hours on May 31, June 22, and November 4 and
11 of that year and requesting that the Museum pay him for those lost hours. June 20, 2010 letter
from plaintiff to Jeanette Jimenez (“6/20/10 Letter”) App’x F, Block Suppl. Decl. Ex. B App’x
F.

In the first form, dated May 31, 2008, plaintiff alleges that on that date, a Saturday,

Monuszko should have awarded plaintiff overtime work from 8:00 AM to 1:00 PM “based on
the low-man asked first procedure” but, instead, assigned the work to Pizzolo. Id. In the second
form, dated June 29, 2008, plaintiff alleges that on Sunday June 22, 2008, Monuszko should
have awarded plaintiff overtime work from 8:00 AM to 4:00 PM “based on the low man asked

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first procedure” but, instead, assigned the work to Playas. Id. In the third form, dated November
11, 2008, plaintiff alleges that on Tuesday, November 4, 2008 and Tuesday, November 11, 2008,
he “was not allowed to cover [plaintiff’s] shift after he volunteered to work by signing the posted
overtime sheet, posted by management.” Id. Plaintiff does not expressly allege in any of these
forms that anybody is discriminating or retaliating against him.
On the first two grievance forms, Gomez wrote that the grievance “IS DENIED AFTER
BEING INSTRUCTED BY MANAGEMENT THAT THE UNION IS NOT RECOGNIZING
THIS FORM AND THAT IT SHOULD BE CONSIDERED FRIVOLOUS.” Id. The record
does not reflect whether these grievances were actually frivolous. Nor does the record contain
definitive evidence about how the Museum or the Union responded to the grievance concerning
November 4 and 11, 2008, though plaintiff alleges in an October 16, 2009 letter to the Equal
Employment Opportunities Commission (EEOC) that “Multiple grievances were filed by my
union representative . . . with the museum and all of them were either denied or never
responded,” October 16, 2009 letter from plaintiff to EEOC (“10/16/09 Letter”), Block Suppl.
Decl. Ex. A at 3.
In 2009, plaintiff filed three more grievance forms alleging that he was deprived of
overtime hours on January 19, May 16, and June 7 of that year and requesting that the Museum
nevertheless pay him for those hours. See Pl. Suppl. Decl. Ex. A. Plaintiff filed the first form,
dated January 20, 2009, with Gomez, “Management,” and the Union, alleging that although
plaintiff had “signed up” to work holiday overtime hours the previous day and had “the least
amount of overtime hours,” someone with more overtime hours than plaintiff received the
assignment.

Id.

Plaintiff filed the second form, dated May 19, 2009, with Gene Mianti,

“Management,” and the Union, alleging that plaintiff “[w]as not called in to cover 8 AM to 1

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PM” on Saturday, May 16, 2009. Id. Plaintiff filed the third form, dated June 9, 2009, with
Gomez, “Management,” and the Union, alleging that because “[overtime] was not posted” for
Sunday, June 7, 2009, plaintiff “was not afforded the opportunity to work,” and someone from
outside the Plumbing Shop received the assignment instead of plaintiff. Id. Plaintiff neither
names Monuszko nor expressly alleges discrimination or retaliation in any of these forms. The
record does not reflect whether anybody at the Museum or the Union responded to these forms.
Plaintiff states that he was “continually denied overtime and was denied overtime up to
about my termination date.” Pl. Suppl. Decl. ¶ 13.
The parties dispute whether Monuszko had any discretion in granting overtime
assignments. Id. ¶ 15, Noone Suppl. Decl. ¶ 11.
C. Layoffs at the Museum
1. The Museum’s Negotiations With the Union
In approximately November 2008, the Museum began to face financial hardship.
McDowell Decl. ¶ 3; McDowell Dep. 21:22–22:7, 5/22/12. As a result, the Museum was forced
to reduce the size of its operating budget by, among other things, reducing the number of
Museum employees. McDowell Decl. ¶¶ 3–4. Before reducing its staff, the Museum employed
approximately 807 Union members and approximately 1,704 non-Union members. Id. ¶ 4. The
Museum began by placing a hiring freeze on 80 vacant, non-Union positions. Id. ¶ 5. Next, the
Museum reviewed all non-Union and Union positions to determine which positions the Museum
could eliminate without adversely affecting its collection, visitors, and general operations. Id.
¶¶ 5–6. The Museum laid off a group of 257 non-Union members and, in February 2009, a
group of eleven probationary employees who were not yet eligible for Union membership. Id.
¶¶ 8–9.

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In late 2008 and early 2009, the Museum began assessing the best way to reduce the
number of Union employees. Id. ¶ 12. Most of the Museum’s Union employees worked in the
Museum’s Buildings Department or Security Department. Id. ¶ 14. Several “shops” comprise
the Buildings Department (for example, the Custodial, Elevator, Plumbing, and Vehicle Shops),
each of which generally requires a different skill set and/or license. Id. ¶¶ 14–15; Facilities
Special Skills/Licensure Title List, McDowell Decl. Ex. C; McDowell Dep. 24:18–25:11,
5/22/12. For example, employees in the Carpentry Shop must have carpentry and woodworking
skills and pass a practical test; employees in the Elevator Shop must have elevator repair and
maintenance skills and pass a practical test; employees in the Plumbing Shop must have
plumbing repair and maintenance skills and pass a practical test; and employees in the Drivers
Shop must have a commercial driver’s license. McDowell Decl. Ex. C. Employees in one shop
are not trained to perform other shops’ employees’ duties. July 21, 2009 letter from Chris
Wilgenkamp to plaintiff (“6/21/09 Letter”), Catlow Decl. Supp. Mot. Summ. J. (“Catlow Decl.”)
Ex. B, ECF No. 31. All individuals who work in the Buildings Department have the title of
Maintainer or Assistant Maintainer, regardless of the shops in which they work. McDowell
Decl. ¶ 14.
The CBA provides that
In the event of any layoffs of employees due to a reduction of staff,
those
employees within the particular department, i.e., the
Security Department, the Buildings Department on in the title of
Departmental Technician, Senior Departmental Technician, who
were hired last shall be laid off first, and rehiring shall be in
reverse order within the particular department or title.
CBA Art. XV(2).
Beginning in approximately February 2009, the Museum negotiated with the Union
concerning the impact of laying off Union members. McDowell Decl. ¶ 16; McDowell Dep.

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22:8–20, 5/22/12.

Noone and McDowell represented the Museum in the negotiations.

McDowell Decl. ¶ 17.
At the end of that month, plaintiff lost an election for the position of Shop Steward. See
Karlin Decl. Opp’n Mot. Summ. J. (“Karlin Decl.”) Ex. 8, ECF No. 25. On March 3, 2009,
plaintiff wrote a letter to Mike Riggio, Director of the Union’s White Collar Division, contesting
the election results on the grounds that the voting administrators had prohibited late-shift
employees from voting. Id.

The letter annexes a petition that several Museum employees

signed. Id. The record is unclear as to whether, or how, the Union responded to plaintiff’s
contest.
Meanwhile, the Museum and the Union continued their negotiations concerning the
impact of laying off Union employees. In selecting employees for layoffs, the Museum sought
not to impact the galleries, and to retain employees with certain skill sets. McDowell Decl. ¶ 18.
The Museum communicated to the Union that the Museum’s priorities were to continue
providing a high level of security, to maintain the Museum’s facilities so that it could maintain
its status as a world-class institution, and to be able to fulfill the Museum’s commitments
concerning exhibitions and programs. Id. ¶ 13; McDowell Dep. 23:20–24:9, 5/22/12.
The Museum informed the Union that to further these priorities, it was considering
terminating Union employees in the Security Department and in the Buildings Department’s
Custodial, Elevator, Plaza Pool, and Vehicle Shops, as well as Departmental Technicians.
McDowell Decl. ¶ 18. The Museum also proposed placing a hiring freeze on vacant Union
positions. Id.
During the negotiations, the Museum and the Union never discussed the employees’
personal characteristics, such as their races, national origins, or complaint histories. Id. ¶ 25.

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2. Layoffs in the Buildings Department
In considering which Buildings Department employees to lay off, the Museum, with the
Union’s agreement, considered seniority within the individual shops, but not within the entire
Buildings Department. See id. ¶ 24; Roster dated March 26, 2009 (“3/26/09 Roster”), Karlin
Decl. Ex. 2.
In making these seniority determinations, the Museum and the Union disagreed over
whether the Plaza Pool was a shop in its own right or part of the Plumbing Shop. See McDowell
Decl. ¶ 21.
Historically, the Museum’s Finance and Human Resources departments had not
considered the Plaza Pool its own shop, even though the Plaza Pool was “separated in function,
in location, in [overtime], and on [the Museum’s] website.” Potential Plaza Pool/Plumber
Changes, McDowell Decl. ¶ 19, Ex. E. Nevertheless, the Museum proposed eliminating the
Plaza Pool Shop entirely and shifting its responsibilities to other shops, id. ¶ 21, such that the
Plumbing Shop would begin “repair[ing] all pumps, filters, drains and mechanical elements and
treat[ing] the water” in fountains the Plaza Pool Shop had previously serviced; the Horticulture
Shop would begin cleaning those fountains; the Custodial Shop would begin moving benches in
and out of the Museum and “maintain[ing], repair[ing], and operat[ing] the tractors used for
snow removal”; and the Carpentry Shop would begin repairing the plaza benches. Id. Ex. E.
The Union, however, insisted, in keeping with the historical view, that the Plaza Pool employees
were part of the Plumbing Shop because they were plumbers. Id. ¶ 21; McDowell Dep. 27:8–15;
6/21/09 Letter. The Museum agreed to this demand and reached an agreement with the Union
concerning which departments and shops the layoffs would impact. McDowell Decl. ¶ 22;
McDowell Dep. 27:24–28:4, 30:13–15.

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The Plumbing Shop, interpreted to include the Plaza Pool, contained a total of seven
employees, of whom plaintiff and Kletzky were the most junior. McDowell Decl. ¶¶ 22, 26;
3/26/09 Roster. As of March 26, 2009, plaintiff and Kletzky each had 2.5 years of seniority.
3/26/09 Roster.

The other Plumbing Department employees were four Maintainers with

seniority ranging from 7.5 to 22.3 years, an Assistant Maintainer with seniority of 9.9 years, and
Monuszko, who had seniority of 16.5 years. Id.
While plaintiff, along with Kletzky, was the most junior in the Plumbing Shop, he was
not the most junior in the entire Buildings Department. See id. However, because the Museum
and Union assessed seniority by shop instead of by department, the Museum did not lay off
several employees from other shops who had less seniority than plaintiff. See id.
With the Union’s agreement, the Museum selected for layoff the two most junior
employees in the Plumbing Shop, as interpreted to include the Plaza Pool (plaintiff and Kletzky),
sixteen employees in the Security Department, two employees in the Elevator Shop (one of
whom opted for early retirement), and one Departmental Technician in the Image Library.
McDowell Decl. ¶ 23; June 4, 2009 letter from McDowell to AFSCME, McDowell Decl. Ex. F.
The Museum and the Union made their agreement without ever discussing or considering the
employees’ national origins. McDowell Decl. ¶ 24.
The Museum laid plaintiff off on either June 9, 2009 or June 16, 2009. See id. ¶ 26; Pl.
Decl. ¶ 2; October 30, 2009 letter from National Labor Relations Board (NLRB) Regional
Director Celeste J. Mattina to plaintiff (“10/30/09 Letter”), Block Decl. Ex. G.
Plaintiff admits that Monuszko played no role in the Museum’s decision to terminate
him. McDowell Decl. ¶ 27; Pl.’s Response to Def.’s Rule 56.1 Statement (“Pl.’s 56.1”) ¶¶ 60,
74, ECF No. 27. Plaintiff also admits that as a Union employee, Monuszko did not have the

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power to hire, fire, or set terms or conditions of employment for any Museum employee. Pl.’s
56.1 ¶¶ 60–61.
Plaintiff believes the Museum terminated him because “I’m the only one complaining in
the entire Building Department,” Pl. Dep. 39:8–10, 11/22/11, and he believes his termination was
discriminatory “[b]ecause I’m the only Indian guy in the Building Department let go.” Id. 43:5–
8.
D. Plaintiff’s Complaints to the Union, NLRB, and EEOC
On June 19, 2009, plaintiff requested that the Union pursue a grievance on his behalf. Pl.
Dep. 48:12–15, 11/22/11; Def.’s Rule 56.1 Statement (“Def.’s 56.1”) ¶ 83, ECF No. 19;
10/30/09 Letter.

The Union reviewed plaintiff’s grievance and confirmed its earlier

determination that the Museum had terminated plaintiff properly. 10/30/09 Letter. On July 21,
2009, Chris Wilgenkamp, Assistant Director of the Union’s White Collar Division, sent plaintiff
a letter stating that the Union and Museum’s agreement reflected that the members of the
Buildings Department’s shops “have not been cross[-]trained to work in other shops,” and that
the Union, along with its Legal Department, believed that “seniority has been respected and
layoffs conform with the terms of the [CBA].” 6/21/09 Letter at 2.
Plaintiff then filed an unfair labor practice charge with Region 2 of the NLRB alleging
that the Union had violated Section 8(b)(1)(A) of the National Labor Relations Act (NLRA) by
refusing to file a grievance on his behalf. Def.’s 56.1 ¶ 85; see 10/30/09 Letter. The NLRB
dismissed the charge, finding that the Union had (1) deemed plaintiff’s layoff proper while
negotiating with the Museum “according to the bargaining history and past practice between the
[Museum] and the Union”; and (2) made its decision not to pursue plaintiff’s grievance “based
upon its good faith evaluation of the merits of your claim.” 10/30/09 Letter. Plaintiff appealed

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NLRB Region 2’s determination, and the NLRB Office of Appeals denied the appeal
“substantially for the reasons set forth in the Regional Director’s letter,” stating that “It appears
that the Union’s decision was based upon a reasonable interpretation of the contract and
motivated by an intent to protect the integrity of the unit.” February 4, 2010 letter from NLRB
Office of Appeals to plaintiff, Block Decl. Ex. H. Plaintiff then untimely requested that the
NLRB Office of Appeals reconsider its determination, and after reviewing plaintiff’s appeal de
novo, the NLRB Office of Appeals confirmed its prior decision. April 8, 2010 letter from NLRB
Office of Appeals to plaintiff, McDowell Decl. Ex. I.
On October 16, 2009, plaintiff wrote the EEOC a letter “Re: Discrimination Complaint”
summarizing his grievances against the Museum. 10/16/09 Letter. Both parties characterize this
10/16/09 Letter as a “supplemental” submission to the EEOC, rather than a formal charge. Pl.’s
Response to Defendant’s Supplemental Rule 56.1 Statement (“Pl.’s Suppl. 56.1”) ¶ 27, ECF No.
39. In this letter, plaintiff states that he wishes to file charges against the Museum and the Union
for nationality discrimination, retaliatory action, unfair labor practice, wrongful termination, and
breach of contract. 10/16/09 Letter at 4.
Whether this letter contains allegations of overtime deprivation is not clear from its face.
In the letter, plaintiff states “5/21/2008; 6/29/08; 11/14/08; 12/19/08 (Appendix–H). Multiple
grievances were filed by my union representative . . . with the museum and all of them were
either denied or never responded.” Id. at 3. The letter does not specify the subject of these
grievances, and the record does not contain the purported “Appendix–H.” In fact, plaintiff
admits that he did not annex to the 10/16/09 Letter any evidence about his grievances. Pl.’s
Suppl. 56.1 ¶ 28. In any event, the Museum concedes that plaintiff did “raise[] the overtime

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issue” in this letter. Def.’s Supplemental Rule 56.1 Statement (“Def.’s Suppl. 56.1”) ¶ 27, ECF
No. 35. Accordingly, the Court construes the 10/16/09 Letter as raising the overtime issue.
In a notice dated November 2, 2009, the EEOC informed the Museum that plaintiff had
filed a charge of discrimination under the Americans with Disabilities Act (ADA) concerning
“Assignment, Discharge, Harassment, Seniority, Terms/Conditions, Representation, [and]
Wages.” November 2, 2009 Notice of Charge of Discrimination, EEOC Charge No. 520–2010–
00305 (“11/2/09 EEOC Notice of Charge”), Noone Suppl. Decl. Ex. B. The record contains no
actual charge with the corresponding number 520–2010–00305. The 11/2/09 Notice of Charge
does not indicate whether plaintiff filed any claims under Title VII, and plaintiff admits that the
charge itself “did not contain any allegations regarding the assignment of overtime hours to
him.” Pl.’s Suppl. 56.1 ¶ 26.
On February 16, 2010, plaintiff filed another charge with the EEOC. February 16, 2010
EEOC charge (“2/16/10 EEOC Charge”) McDowell Decl. Ex. H at 3. The cover page of the
charge, which is confusingly numbered 520–2009–0, states that plaintiff brings a charge against
the Museum for discrimination based on national origin and retaliation, and directs the reader to
“See attached” for details. Id. The next page is a narrative statement by plaintiff, confusingly
numbered 520–2010–00306, in which plaintiff alleges that his supervisor called him a “cab
driver” and “Rat”; that the Museum terminated plaintiff in retaliation for his protected activity
and medical condition; and that “I have been treated differently in the terms and conditions of
employment, retaliated and discharged because of my national origin as Indian, in violation[] of
Title VII.” Id.1 This charge does not contain a specific allegation that plaintiff was deprived of
overtime work.
1

The Court assumes that despite this discrepancy in their numbering, the cover page and
narrative statement comprise one charge that plaintiff filed on February 16, 2010 because the
16

In another notice dated March 15, 2010, the EEOC informed the Museum that plaintiff
had filed a charge against the Museum for discrimination in violation of the ADA, discrimination
involving plaintiff’s national origin, and retaliation. See March 15, 2010 Notice of Charge of
Discrimination, EEOC Charge No. 520–2010–00305 (“3/15/10 EEOC Notice of Charge”),
McDowell Decl. Ex. H at 1.2
On June 20, 2010, plaintiff wrote the EEOC a letter “Re: Charge # 520–2010–00305.”
6/20/10 Letter. Both parties characterize this 6/20/10 Letter as a “supplemental” submission to
the EEOC, rather than a formal charge. Pl.’s Suppl. 56.1 ¶ 27. In the letter, plaintiff alleges that
“my supervisor denied me to work overtime hours and had the same work performed by high
ranking union officials from other shops,” who were not plumbers, “as a favor from Mr.
Manuszko [sic] to the fellow union members.” 6/20/10 Letter. The letter annexes copies of the
three grievance forms plaintiff filed in 2008 concerning overtime. Id. App’x F.
On January 28, 2011, the EEOC dismissed charge number 520–2010–00306 and issued
plaintiff a “right-to-sue” letter. Block Decl. Ex. F.
E. Reinstatement Rights
The CBA provides that “rehiring shall be in reverse order within the particular
department or title.”

CBA Art. XV(2).

The CBA does not specify how long a laid-off

employee’s reinstatement rights shall last but provides that “[l]aid off employees reinstated from
a Museum list within one year shall receive the salary, with any adjustments, as if they had never
EEOC received both pages on February 19, 2010, see McDowell Decl. Ex. H at 3–4; McDowell
characterizes her entire Exhibit H as “a true and correct copy of the EEOC Charge received by
the Museum,” McDowell Decl. ¶ 29; and plaintiff does not dispute McDowell’s characterization.
2

Confusingly, the EEOC numbered this notice 520–2010–00305, which is the same number the
EEOC assigned to the 11/2/09 EEOC Notice of Charge. Nevertheless, the Court assumes that
this 3/15/10 EEOC Notice of Charge pertains to the 2/16/10 EEOC Charge because McDowell
characterizes her entire Exhibit H as “a true and correct copy of the EEOC Charge received by
the Museum,” McDowell Decl. ¶ 29, and plaintiff does not dispute McDowell’s characterization.
17

been laid off.” CBA Art. XV(3). However, an April 26, 2010 letter from Noone to AFSCME
reflects Noone’s understanding that the Museum and Union “agree” that reinstatement rights last
one year, and “[a]t the expiration of that year, the Museum can resume hiring for union positions
in accord with the [CBA] and established practice without regard to the reinstatement list.” April
26 letter from Noone to AFSCME, Karlin Decl. Ex. 9. The record contains no evidence as to
whether the Union responded to Noone’s letter.
Plaintiff admits that as of the date of the instant summary judgment motion, the Museum
has not replaced plaintiff or Kletzky in the Plumbing Shop, which still has only five employees.
Pl.’s 56.1 ¶ 29; see McDowell Decl. ¶ 26. However, plaintiff alleges that within six months of
his layoff, the Museum hired three new employees in the Buildings Department’s “engineering
department,” albeit not in the Plumbing Shop. Pl. Decl. ¶ 22; Pl. Mem. Opp’n Mot. Summ. J.
(“Pl. Br.”) at 10, ECF No. 28. In support of this assertion, plaintiff annexes a Seniority list dated
May 21, 2009, on which he superimposes commentary that “Met hired three new union
employees in building[] department” and an arrow pointing to the names of three employees
whose seniority and shops are not listed. Karlin Decl. Ex. 6.
II.

DISCUSSION

A. Summary Judgment Standard
Summary judgment is “proper only when, construing the evidence in the light most
favorable to the non-movant, ‘there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.’” Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir.
2011) (quoting Fed. R. Civ. P. 56(a)). The moving party is entitled to judgment as a matter of
law if “the nonmoving party . . . fail[s] to make a sufficient showing on an essential element of
its case with respect to which it has the burden of proof.” Id. The substantive law of the action

18

determines which facts are material, and “only disputes over facts that might affect the outcome
of the suit under the governing law will properly preclude the entry of summary judgment.”
Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

In other words, summary judgment is

appropriate only “[w]here the record taken as a whole could not lead a rational trier of fact to
find for the non-moving party.” Donnelly v. Greenburgh Cent. School Dist. No. 7, 691 F.3d
134, 141 (2d Cir. 2012) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986)). In deciding a summary judgment motion, a court cannot credit a party’s
“merely speculative or conclusory assertions.” DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir.
2012); see also Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (“[C]onclusory statements
or mere allegations [are] not sufficient to defeat a summary judgment motion.”) (quoting Davis
v. N.Y., 316 F.3d 93, 100 (2d Cir. 2002)). One of the primary purposes of the summary
judgment rule is “to isolate and dispose of factually unsupported claims.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986).
Trial courts should be cautious in granting summary judgment to an employer in an
employment discrimination case because direct evidence of discriminatory intent is rare, and
courts must often infer discriminatory intent from circumstantial evidence in affidavits and
depositions. See Gallo v. Prudential Residential Servs. Ltd. P’ship, 22 F.3d 1219, 1224 (2d Cir.
1994). However, “summary judgment remains available for the dismissal of discrimination
claims lacking genuine issues of material fact.” Schiano v. Quality Payroll Systs., Inc., 445 F.3d
597, 603 (2d Cir. 2006) (quoting McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997));
see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (“It is now

19

beyond cavil that summary judgment may be appropriate even in the fact-intensive context of
discrimination cases.”).
B. Plaintiff’s Discrimination Claim
Title VII provides that it is unlawful for an employer “to fail or refuse to hire or to
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. § 2000-e2(a)(1). Courts assess a plaintiff’s
substantive discrimination and retaliation claims using the burden-shifting framework the
Supreme Court set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973);
see Meiri v. Dacon, 759 F.2d 989, 995–98 (2d Cir. 1985).
Under this framework, the plaintiff must first offer evidence to establish a prima facie
case of unlawful employment discrimination. See McDonnell Douglas Corp., 411 U.S. at 802.
This burden is not onerous. Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 253
(1981). In considering whether the plaintiff has established his prima facie case, the court
“presume[s] the[] [employer’s] acts, if otherwise unexplained, are more likely than not based on
the consideration of impermissible factors.” Id. at 254 (quoting Furnco Constr. Corp. v. Waters,
438 U.S. 567, 577 (1978)).
Once the plaintiff makes his prima facie case, a presumption of discrimination arises, and
the burden shifts to the employer “to articulate some legitimate, nondiscriminatory reason” for its
action. McDonnell Douglas Corp., 411 U.S. at 802. “This burden is one of production, not
persuasion; it ‘can involve no credibility assessment.’” Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509
(1993)). The employer must support this explanation with admissible evidence. St. Mary’s

20

Honor Ctr., 509 U.S. at 507 (quoting Burdine, 450 U.S. at 254–55 & n.8). This burden, like the
plaintiff's initial burden to establish a prima facie case, is not a demanding one. Bickerstaff v.
Vassar College, 196 F.3d 435, 446 (2d Cir.1999) (citation omitted).
If the employer carries this burden, the burden shifts back to the plaintiff to demonstrate,
by a preponderance of the evidence, that “the legitimate reasons offered by the defendant were
not its true reasons, but were a pretext for discrimination.” Burdine, 450 U.S. at 253.
“The ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against the plaintiff remains at all times with the plaintiff.” Id.
1. Plaintiff’s Prima Facie Case
To establish a prima facie case of termination based on national origin, plaintiff must
show that (i) he belonged to a protected class, (ii) his job performance was satisfactory, (iii) he
was discharged, and (iv) the circumstances surrounding his discharge give rise to an inference of
discrimination. See Chertkova v. Connecticut Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996).
“[T]here is no unbending or rigid rule about what circumstances allow an inference of
discrimination when there is an adverse employment decision.” Id. at 91. “The facts necessarily
will vary in Title VII cases, and the specification above of the prima facie proof required . . . is
not necessarily applicable in every respect to differing factual situations.” McDonnell Douglas
Corp., 411 U.S. at 802 n.13. The circumstances that give rise to an inference of discriminatory
motive include “actions or remarks made by decisionmakers that could be viewed as reflecting a
discriminatory animus[;] preferential treatment given to employees outside the protected class”;
a defendant’s continuing after plaintiff’s termination “to seek applicants to fill the position”; and,
in a corporate downsizing, “the systematic transfer of a discharged employee’s duties to other
employees or a pattern of recommending the plaintiff for positions for which he . . . is not

21

qualified” or “failure to surface plaintiff's name for positions for which he . . . is well-qualified.”
Chertkova, 92 F.3d at 91 (citations omitted). A plaintiff might also “rely upon the timing or
sequence of events leading to the plaintiff's termination.” Id. (citation omitted).
Plaintiff alleges that the Museum terminated him on the basis of his national origin, in
violation of Title VII. Compl. ¶¶ 4, 10; Pl. Dep. 43:2–8, 11/22/11. The parties do not dispute
that plaintiff is a member of a protected class, that plaintiff was qualified to do his job, or that the
Museum discharged him. They do, however, dispute whether the facts permit an inference of
discrimination.
i.

Monuszko’s Alleged Statements

“It is well settled that verbal comments may constitute evidence of discriminatory intent
if the plaintiff can establish a nexus between the alleged discriminatory remarks and the
defendant’s decision to terminate the plaintiff’s employment.” Del Franco v. N.Y. City OffTrack Betting Corp., 429 F. Supp. 2d 529, 536 (E.D.N.Y. 2006) (citations omitted); see also
Ahmad v. Nassau Health Care Corp., 234 F. Supp. 2d 185, 193 (E.D.N.Y. 2002) (“Verbal
comments may constitute evidence of discrimination only when such comments are: (1) related
to race, religion, and/or national origin; (2) ‘proximate in time to the adverse employment
decision’; (3) ‘made by an individual with authority over the employment decision at issue’; and
(4) ‘related to the employment decision at issue.’”), aff’d, 71 Fed. Appx. 98 (2d Cir. 2003)
(quoting Ruane v. Cont’l Cas. Co., No. 96–CV–7153, 1998 WL 292103, at *9 (S.D.N.Y. June 3,
1998).
Plaintiff states that Monuszko made several comments which plaintiff interprets as
relating to plaintiff’s Indian national origin.

Specifically, plaintiff presents evidence that

Monuszko (1) called him a “rat” and a “cabdriver,” Pl. Dep. 16:9–15, 11/22/11; 10/9/07 Compl.;

22

(2) commented that Indians “blow up buildings,” Pl. Decl. ¶ 10; Pl. Dep. 19:20–21, 28:11–16,
11/22/11; (3) stated that, as the one wearing the “white shirt,” Monuszko could do overtime
whenever he wanted, 4/21/08 Compl.; Pl. Dep. 30:8–16, 11/22/11; (4) phoned plaintiff and said,
“Let me give you some advice. I’m the one who run the show here, you always remember that,”
Pl. Dep. 33:13–20, 11/22/11; and (5) made other, unspecified, discriminatory comments when
nobody else was present. Id. 28:11–16; Pl. Decl. ¶ 11.
Plaintiff presents no argument, and the Court is aware of none, as to how “rat” relates to
plaintiff’s national origin. In fact, Plaintiff’s admits that he interpreted “rat” to mean “[r]at
meaning you ratting us out. Why you complaining? We’re here for 17 years doing whatever we
want.” Id. 17:17–21, 11/22/11.
When asked why he considered Monuszko’s alleged comment about a “white shirt”
discriminatory, plaintiff responded that Monuszko was saying “You can’t do absolutely nothing
to me . . . . I’m the one wearing white shirt, I can do whatever I want.” Pl. Dep. 30:8–16,
11/22/11.

This interpretation does not explain how Monuszko’s alleged comment was

discriminatory. Nor does the record contain any evidence that the alleged comment had anything
to do with plaintiff’s Indian national origin.
Plaintiff asserts that Monuszko’s comment to him on the telephone about “run[ning] the
show” was discriminatory “because he threaten me all the time, nobody else. All the white guys
stay on the side.” Id. 33:13–20. However, the record contains no evidence that this was a threat,
let alone a threat Monuszko made because of plaintiff’s Indian origin. See Ahmad, 234 F. Supp.
2d at 193 (finding that alleged comment could not support prima facie claim under Title VII
because they “did not even mention race, religion or nation origin, and it is unclear how, if at all,
it related to [plaintiff’s national] origin”).

23

And while plaintiff alleges that Monuszko made other, unspecified, discriminatory
comments when nobody else was present, plaintiff provides no evidence concerning what
Monuszko allegedly said. Accordingly, the record contains no evidence that any of the alleged
comments was discriminatory.
In contrast, plaintiff presents plausible arguments that two of Monuszko’s alleged
comments were discriminatory.

Plaintiff interpreted the alleged “cab driver” comment as

concerning plaintiff’s Indian national origin because “all the Indian people, they drive cabs.” Id.
19:3–4. Further, Monuszko’s alleged comment that Indians blow up buildings was expressly
derogatory to Indians.
However, the record contains no evidence that Monuszko made these alleged comments
proximate to plaintiff’s termination. The Museum terminated plaintiff in June 2009. Plaintiff
reported Monuszko’s alleged “rat” and “cab driver” comments in October 2007 and Monuszko’s
alleged “white shirt” comment in April 2008, over a year before plaintiff’s termination. See,
e.g., Del Franco, 429 F. Supp. 2d at 537 (finding that alleged discriminatory comments made
slightly more than three months before plaintiff’s termination “were not temporally related to
plaintiff’s eventual discharge”). And plaintiff provides no evidence that Monuszko made the
other alleged comments proximate to plaintiff’s termination. This “lack of specificity in time
and place . . . cuts against Plaintiff's claims” of discrimination. Ahmad, 234 F. Supp. 2d at 194.
Most importantly, plaintiff admits that Monuszko played no role in the Museum’s
decision to terminate plaintiff’s employment, McDowell Decl. ¶ 27; Pl.’s 56.1 ¶¶ 60–61, 74.
Monuszko’s alleged comments, therefore, “have no connection to the decision to terminate
Plaintiff.” Ahmad, 234 F. Supp. 2d at 194 (citation omitted); see also Taylor v. Abercrombie &
Fitch Stores, Inc., No. 8–CV–4364, 2010 WL 4168631, at *2 (E.D.N.Y. Oct. 19, 2010)

24

(“Statements made by non-decisionmakers do not give rise to an inference of discrimination.”)
(citing Del Franco, 429 F. Supp. 2d at 536–37).
Plaintiff also admits that the Museum never discussed or considered employees’ national
origins or races in deciding whom to terminate. Pl.’s 56.1 ¶¶ 44–45; see McDowell Decl. ¶ 24.
In fact, the record contains sworn testimony that the Museum’s sole criterion for determining
which Union employees to terminate was seniority by shop. McDowell Decl. ¶¶ 24–25.
Accordingly, Monuszko’s alleged comments do not permit an inference that the
Museum’s termination of plaintiff was discriminatory.
ii.

The Museum’s Alleged Replacement of Plaintiff

Plaintiff alleges that within six months of his layoff, the Museum hired three new
employees in the Buildings Department, albeit not in the Plumbing Shop. See Pl. Decl. ¶ 22; Pl.
Br. at 10; Karlin Decl. Ex. 6; Pl.’s 56.1 ¶ 49. Plaintiff makes this allegation in his declaration,
purportedly on the basis of personal knowledge, though plaintiff does not name these alleged
new employees in his declaration. Pl. Decl. ¶ 22. Plaintiff, however, admits that these alleged
new employees do not work in the Plumbing Shop and, therefore, did not fill his position. Id. In
fact, plaintiff admits that as of the date of the instant summary judgment motion, the Museum
has not replaced him or Kletzky, and that the Plumbing Shop still has only five employees. Pl.’s
56.1 ¶ 49; see also McDowell Decl. ¶ 26.
The record thus belies plaintiff’s claim that the Museum replaced him within six months
of his termination.
Accordingly, plaintiff fails to present a prima facie case that the Museum selected him for
layoff based on his national origin.

25

2. The Museum Articulates a Legitimate, Non-Discriminatory Motive for
Terminating Plaintiff
Even if plaintiff presented a prima facie case, his claim fails under the McDonnell
Douglas burden-shifting framework because the Museum presents a legitimate, nondiscriminatory motive for terminating plaintiff, which plaintiff cannot show is pretextual.
The Museum contends that financial hardship necessitated Museum-wide layoffs, and
that once the Museum and the Union agreed upon which shops the layoffs would affect, the sole
criterion for layoffs was reverse seniority by shop. See McDowell Decl. ¶ 24. In support of this
contention, the Museum offers evidence in the form of McDowell’s deposition and declaration,
and a roster depicting seniority within the Plumbing Shop. See id. Ex. D.
Further, the record reflects that the Museum did not single out plaintiff but, rather,
terminated him along with several non-Indians, including Kletzky. See Johnson v. Nicholson,
No. 5–CV–2740, 2007 WL 1395546, at *7 (E.D.N.Y. May 11, 2007) (finding that defendant
articulated a legitimate reason for challenged employment actions, where “[p]laintiff was not
singled out”).
3. Plaintiff Offers No Evidence that the Museum’s Explanation is a Pretext for
Discrimination
Plaintiff cannot demonstrate that the Museum’s proffered explanation is a pretext for
discrimination unless he shows that the Museum “was in fact motivated at least in part by the
prohibited discriminatory animus.” Henry v. Wyeth Pharmaceuticals, Inc., 616 F.3d 134, 156
(2d Cir. 2010) (citing Gordon v. N.Y. City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)).
Plaintiff admits that as a result of financial hardship, in approximately November 2008,
the Museum was forced to take steps to reduce its operating budget and headcount. Pl.’s 56.1
¶¶ 1–3. Plaintiff admits that the Museum and the Union negotiated concerning the layoffs, that

26

the Union insisted the Museum consider the Plaza Pool employees part of the Plumbing Shop,
and that once the Museum and the Union agreed upon which shops the layoffs would affect, the
sole criterion for layoffs was reverse seniority by shop. Id. ¶¶ 31–32, 39, 46.
Plaintiff testified that “I’m the only Indian guy in the Building[s] Department let go.” Pl.
Dep. 43:5–8, 11/22/11. Presumably plaintiff means that he was the only Indian employee in the
Buildings Department, and not that he alone was fired from among several Indian employees in
the Buildings Department.

Either way, the relevant question is whether the Museum laid

plaintiff off because he is Indian, and plaintiff provides no evidence this was the case. On the
contrary, plaintiff admits that the Museum never discussed or considered employees’ national
origins or races in deciding whom to terminate. Pl.’s 56.1 ¶¶ 44–45.
Plaintiff presents no evidence that discrimination was a motivating factor in the
Museum’s decision to terminate him. Nor does he provide any “indication that any evidence
exists that would permit the trier of fact to draw a reasonable inference of pretext.” Meiri, 759
F.2d at 998. Accordingly, plaintiff has not produced sufficient probative evidence that the
Museum’s proffered reason for terminating him is pretextual.
For these reasons, no genuine issue of material fact exists concerning whether the
Museum terminated plaintiff because of his national origin, and the Museum is entitled to
summary judgment on plaintiff’s claim that the Museum discriminated against him in violation
of Title VII.
C. Plaintiff’s Retaliation Claims
Title VII prohibits an employer from retaliating against an employee because the
employee opposed the employer’s potentially discriminatory practices. See 42 U.S.C. § 2000e–
3(a) (prohibiting an employer from discriminating against an employee or employment applicant

27

“because he has opposed any practice made an unlawful employment practice by this subchapter,
or because he has made a charge, testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter”).
Courts analyze such retaliation claims using the McDonnell Douglas burden-shifting
framework described above. See Burdine, 450 U.S. at 252–54 (1981); Feingold v. N.Y., 366
F.3d 138, 157 (2d Cir. 2004). If the plaintiff makes a prima facie case of prohibited retaliation,
the burden shifts to the defendant to provide a legitimate, nonretaliatory reason for the
challenged employment decision. Cifra v. G.E. Co., 252 F.3d 205, 216 (2d Cir. 2001). If the
defendant satisfies this burden, the burden shifts back to plaintiff to “point to evidence that
would be sufficient to permit a rational factfinder to conclude that the employer’s explanation is
merely a pretext for impermissible retaliation.” Id. (citations omitted). The plaintiff cannot
demonstrate that the defendant’s proffered explanation is pretextual unless he shows that the
defendant “was in fact motivated at least in part by the prohibited discriminatory animus.”
Henry, 616 F.3d at 156 (2d Cir. 2010) (citing Gordon, 232 F.3d at 117).
1. Plaintiff’s Prima Facie Case for Retaliatory Termination and Retaliatory Denial
of Overtime
To establish a prima facie case of retaliation in violation of Title VII, the plaintiff must
show that (1) he participated in a protected activity known to the defendant, (2) defendant took
an adverse employment action against him, and (3) a causal connection exists between the
protected activity and the adverse employment action, i.e., “that a retaliatory motive played a
part in the adverse employment action.” Cifra, 252 F.3d at 216. As stated earlier, the plaintiff’s
burden in making a prima facie case is de minimis. Slattery v. Swiss Reins. Am. Corp., 248 F.3d
87, 94 (2d Cir. 2001).

28

With regard to the first prong, “protected activity” refers to any action the plaintiff took
to oppose statutorily prohibited discrimination. See 42 U.S.C. § 2000e–3. In showing that
defendant knew about the protected activity, plaintiff need only show general corporate
knowledge. Gordon, 232 F.3d at 116. A plaintiff's filing an internal complaint is sufficient to
put an employer on notice that the plaintiff engaged in protected activity. Everson v. N.Y. City
Transit Auth., No. 2–CV–1121, 2007 WL 539159, at *27 (E.D.N.Y. Feb. 16, 2007) (citing
Alston v. N.Y. City Transit Auth., 14 F. Supp. 2d 308, 311 (S.D.N.Y. 1998)).
With regard to the second prong, adverse employment actions in the context of retaliation
cases are “those (and only those) employer actions that would have been materially adverse to a
reasonable employee or job applicant” — for example, employer actions that would “dissuade a
reasonable worker from making or supporting a charge of discrimination.” Burlington N. &
Santa Fe Ry. v. White, 548 U.S. 53, 57 (2006). In other words, Title VII’s anti-retaliation
provision prohibits a broader range of conduct than Title VII’s anti-discrimination provision. Id.,
548 U.S. at 66. However, filing a discrimination case “cannot immunize [an] employee from
those petty slights or minor annoyances that often take place at work and that all employees
experience.” Id. at 68.
With regard to the third prong, plaintiff may show a causal connection between the
protected activity and the adverse employment action either “(1) indirectly, by showing that the
protected activity was followed closely by discriminatory treatment, or through other
circumstantial evidence such as disparate treatment of fellow employees who engaged in similar
conduct” or (2) “directly, through evidence of retaliatory animus directed against the plaintiff by
the defendant.” Gordon, 232 F.3d at 117 (citing Cosgrove v. Sears, Roebuck & Co., 9 F.3d
1033, 1039 (2d Cir. 1993)). There is no bright-line rule for determining when retaliatory conduct

29

followed closely behind a plaintiff’s protected activity, see Gorman-Bakos v. Cornell Coop.
Extension of Schenectady Cty., 252 F.3d 545, 554 (2d Cir. 2001), but the temporal proximity
must be “very close.” Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (internal
quotation marks omitted).
Plaintiff alleges two forms of retaliation. First, plaintiff alleges that after he filed his
complaints with the Museum, the Museum retaliated against him by terminating him. Pl. Br. at
14; Pl. Decl. ¶ 16; Pl. Dep. 39:6–10; Pl.’s 56.1 ¶ 46. Second, plaintiff alleges that after plaintiff
filed the 10/9/07 Complaint, Monuszko retaliated against him by offering him little to no
overtime work, whereas other employees had opportunities for significant overtime work. Pl.
Br. at 13; Pl. Decl. ¶ 9; 4/21/08 Compl.; Block Suppl. Decl. Exs. A, B.
The parties dispute whether plaintiff makes a prima facie case for his retaliation claims.
i. Plaintiff Shows that He Engaged in Protected Activity, and that the
Museum Knew About the Protected Activity
Arguing that plaintiff did not engage in protected activity, the Museum mischaracterizes
plaintiff’s retaliation claims as claims that the Museum and Monuszko retaliated against him
only because he complained about smoking (an activity Title VII does not protect), and not
because he complained about discrimination (an activity Title VII does protect). Def.’s Mem.
Supp. Mot. Summ. J. (“Def. Br.”) at 17, ECF No. 18; Def.’s 56.1 ¶¶ 64–66; Def.’s Suppl. Br.
Supp. Mot. Summ. J. (“Def. Suppl. Br.”) at 1–2, 4–5. ECF No. 34. In support of this argument,
the Museum cites selectively to plaintiff’s pro se complaint and segments of plaintiff’s
deposition in which the Museum’s attorney – but not plaintiff, who appeared for his deposition
pro se – describes the 10/9/07 Complaint in incomplete, self-serving fashion as “the complaint
about the smoking policy.” Def. Br. at 17 (citing Pl. Dep. 33:2–5, 11/22/11); see Def. Suppl. Br.

30

at 6 (citing to similar statements in plaintiff’s deposition testimony that the Museum did not
include in the record).
In so doing, the Museum ignores the substance of both the 10/9/07 Complaint and the
4/21/08 Complaint, as well as plaintiff’s testimony that he was terminated because “I’m the only
one complaining in the entire Building[s] Department,” Pl. Dep. 39:8–10; “because I had
complained about discrimination and whereas no one else in the Building[s] Department made
complaints,” Pl. Decl. ¶ 16; and “in retaliation for me complaining about discrimination.” Id.
¶ 18.
In the 10/9/07 Complaint, plaintiff alleges not only that employees are smoking in the
Plumbing Shop, but also that Monuszko has been making discriminatory comments. Making the
allegations in the 10/9/07 Complaint about Monuszko’s discriminatory comments was a
protected activity.
Similarly, in the 4/21/08 Complaint, plaintiff alleges that Monuszko retaliated against
him for filing the 10/9/07 Complaint. Filing the 4/21/08 Complaint was a protected activity
insofar as the 10/9/07 Complaint included allegations about discrimination.3
In contrast, the record does not permit the Court to find that plaintiff’s verbal complaints
to Gomez were protected activities, as plaintiff provides no evidence concerning when in 2009
he complained to Gomez or what he said to Gomez.
The six grievance forms plaintiff filed in 2008 and 2009 alleging overtime deprivation
present a closer question. Plaintiff does not expressly allege discrimination or retaliation in these
forms. Moreover, in the latter four forms, plaintiff does not name Monuszko.
3

Given the 4/21/08 Complaint’s substance, the Museum misstates the facts in stating that “at no
time had plaintiff alleged a causal connection between his complaint of discrimination and the
assignment of overtime hours prior to his opposition to this motion.” Def. Suppl. Br. at 2; see
also id. at 7.

31

Construing the evidence in the light most favorable to plaintiff, the Court finds that filing
the grievance forms was a protected activity, for two reasons. First, given plaintiff’s testimony
that “Monuszko is the one who decides who is assigned overtime to work with him,” Pl. Suppl.
Decl. ¶ 14, plaintiff’s grievances concerning overtime deprivation are effectively grievances that
Monuszko deprived him of overtime. See Doninger, 642 F.3d at 344 (2d Cir. 2011) (instructing
courts to construe evidence in light most favorable to non-movant on summary judgment).4
Second, plaintiff’s 4/21/08 Complaint to the Museum, in which he alleges that Monuszko
retaliated against him for making the 10/9/07 Complaint by depriving him of overtime
assignments, contextualizes plaintiff’s subsequent allegations in the grievance forms as
allegations that Monuszko continued to retaliate against him in the same fashion. Accordingly,
the Court finds that filing the grievance forms was a protected activity.
Plaintiff, moreover, shows that the Museum was aware of his protected activity because
plaintiff addressed his 10/9/07 Complaint and 4/21/08 Complaint to the Museum and sent copies
of his grievance forms to “Management” (and, in some cases, to his Shop Steward). 6/20/10
Letter App’x F; Pl. Suppl. Decl. Ex. A; see Gordon, 232 F.3d at 116; Everson, 2007 WL 539159,
at *27.
Accordingly, plaintiff satisfies the first prong of a prima facie case for both retaliatory
termination and retaliatory denial of overtime.

4

The Court notes that the Museum disputes the veracity of plaintiff’s testimony that Monuszko
had discretion concerning overtime assignments, see Noone Suppl. Decl. ¶ 11. But regardless of
whether plaintiff’s allegations concerning Monuszko are true – a matter on which the Court does
not here opine – making the allegations on a good-faith basis was a protected activity.
32

ii. Plaintiff Suffered the Adverse Employment Action of Termination
The parties do not dispute that termination is an adverse employment action, or that
plaintiff was terminated. See, e.g., Harris v. Niagara Mohawk Power Corp., 252 F.3d 592, 598
n.2 (2d Cir. 2001) (“For good reason, the defendant did not dispute the fact that the plaintiff's
termination was an adverse employment action.”) (internal quotation marks omitted).
Accordingly, plaintiff satisfies the second prong of a prima facie case for retaliatory
termination.
iii. Plaintiff Presents Evidence that He was Denied Overtime
The parties do not dispute that denying an employee overtime assignments is an adverse
employment action. See Montgomery v. Chertoff, 3–CV–5387, 2007 WL 1233551, at *12
(E.D.N.Y. Apr. 25, 2007) (“Not being assigned overtime can result in a material loss of pay and
may be considered an adverse act.”) (citing Demoret v. Zegarelli, 451 F.3d 140, 151 (2d Cir.
2006)); Everson, 2007 WL 539159, at *30 (citing Perez v. Con. Edison Corp. of N.Y., No. 2–
CV–2832, 2006 WL 2707316, at *13 (S.D.N.Y. Sept. 20, 2006) (finding that plaintiff's
temporary transfer to work site in different location was adverse action because transfer caused
plaintiff to lose shift differential and overtime pay)).
Plaintiff’s evidence that he was denied overtime consists of (1) statements he makes in
his declarations and (2) copies of the 10/9/07 Complaint, the 4/21/08 Complaint, and his six
grievance forms.
“An affidavit or declaration used to . . . oppose a motion [for summary judgment] must
be made on personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. Proc.
56(c)(4). For a court to consider an affidavit opposing summary judgment, “an implicit or

33

explicit showing that the affiant is prepared to testify in a manner consistent with an affidavit is
required.” Santos v. Murdock, 243 F.3d 681, 684 (2d Cir. 2001). Even if an affidavit or
declaration would not be admissible at trial, “a court may consider it on a summary judgment
motion if it is based on personal knowledge and sets forth facts to which the declarant could
testify at trial and that would be admissible in evidence.”

Schaghticoke Tribal Nation v.

Kempthorne, 587 F. Supp. 2d 389, 396 (D. Conn. 2008).
Similarly, a court deciding a summary judgment motion can consider hearsay upon “a
showing that admissible evidence will be available at trial.” Burlington Coat Factory Warehouse
Corp. v. Esprit De Corp., 769 F.2d 919, 924 (2d Cir. 1985); see also Savage v. Scripto-Tokai
Corp., 266 F. Supp. 2d 344, 351 (D. Conn. 2003) (“[T]here is no basis to doubt that plaintiff[]
will be able to present this evidence in admissible form at trial . . . .”) (citation omitted).
In his declaration, plaintiff recounts, on the basis of personal knowledge, that he filed the
4/21/08 Complaint,
which described how after I made the [10/9/07 Complaint] Mr.
Monuszko had treated me differently than the other employees in
the plumbing shop. For example, he offered me little to no
overtime whereas other employees had the opportunity for
significant overtime and Mr. Monuszko also assigned himself
significant overtime.
Pl. Decl. ¶ 9.
Plaintiff also states in his declaration that he was “continually denied overtime . . . up to
about my termination date” and that he filed grievances “about the denial of overtime,” some of
which he annexes. Pl. Suppl. Decl. ¶¶ 13–14, Ex. A. This evidence is more specific as to when
plaintiff alleges the final instance of overtime deprivation occurred.
Finally, plaintiff states in his declaration that “Mr. Monuszko is the one who decides who
is assigned overtime to work with him. There is no[] []one else who makes the decision. . . . I

34

know that because I was there when overtime was scheduled, almost on a daily basis.” Pl.
Suppl. Decl. ¶ 18.
The statements plaintiff makes in his declarations do not include details about particular
instances of overtime denial, and the 4/21/08 Complaint and grievance forms plaintiff filed are
hearsay. Presumably, however, plaintiff could testify at trial in a manner consistent with many
of the allegations he makes in the 4/21/08 Complaint and the grievance forms. Moreover, the
4/21/08 Complaint and the grievance forms would likely be admissible as plaintiff’s recorded
recollections or the Museum’s business records.

See Salerno v. City Univ. of N.Y., No. 99–

CV–11151, 2003 WL 22170609, at *2 n.5 (S.D.N.Y. Sept. 18, 2009) (considering on summary
judgment a letter plaintiff wrote because, were plaintiff to testify at trial, she would presumably
recall events the letter alleged, and if not, letter would be admissible under “recorded
recollection” exception to the hearsay rule) (citing Fed. R. Evid. 803(5)).
The Museum does not argue that plaintiff actually worked overtime on the dates in
question.5
Accordingly, plaintiff satisfies the second prong of a prima facie case for retaliatory
denial of overtime.
iv. Plaintiff Presents Evidence of a Causal Connection Between His
Protected Activities and His Termination
If making the 4/21/08 Complaint were plaintiff’s final protected activity, the Court would
find that plaintiff’s June 2009 termination was too temporally remote from plaintiff’s protected
activity to establish a causal connection. See Butler v. Raytel Med. Corp., 98–CV–6446, 2004
WL 1961522, at *4 (E.D.N.Y. Aug. 24, 2004) (finding no causation where one year elapsed
between protected activity and adverse action); Lambert v. N.Y. State Office of Mental Health,
5

The Museum does, however, dispute that the overtime denial violated Title VII. See Part II(C)(3), infra.

35

97–CV–1347, 2000 WL 574193, at *13 (E.D.N.Y. Apr. 24, 2000) (finding no causation where
five months elapsed between protected activity and adverse action); Cabian v. N.Y. City, 99–
CV–10533, 2000 WL 1782744, at *18 (S.D.N.Y. Dec. 6, 2000) (finding no causation where over
four months elapsed between protected activity and adverse action).
But plaintiff engaged in subsequent protected activity by filing the grievance forms
concerning overtime deprivation, the last two of which he filed on May 19, 2009 (within a month
of his termination) and June 6, 2009 (within days of his termination). See Reed v. A.W.
Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996) (inferring causation when twelve days
elapsed between protected activity and adverse action); Part II(C)(1)(i), supra. Accordingly,
plaintiff shows a sufficiently close temporal connection between his protected activity and his
termination for the Court to infer causation.
Plaintiff presents no other evidence of an indirect causal connection between his
protected activity and his termination, such as evidence that the Museum treated him differently
from fellow employees who engaged in similar protected conduct. Nor does plaintiff present any
direct evidence that the Museum harbored retaliatory animus toward him. In fact, the record
contradicts any such claim. See McDowell Decl. ¶ 25; Pl.’s 56.1 ¶ 45.
Nevertheless, plaintiff satisfies the third prong of a prima facie case for retaliatory
termination because he shows such close temporal proximity between his protected activity and
his termination.
v. Plaintiff Presents Evidence of a Causal Connection Between His
Protected Activities and the Alleged Overtime Deprivation
In his 4/21/08 Complaint, plaintiff alleges that after he filed the 10/9/07 Complaint,
Monuszko deprived him of overtime work on October 18, 2007; January 7, 2008; February 2,
2008; and April 16, 2008. 4/21/08 Compl.

36

The nine-day proximity between the plaintiff’s filing the 10/9/07 Complaint and the first
date on which plaintiff alleges Monuszko deprived him of overtime is so close as to suggest a
causal connection between these two events. Further, the record suggests a continuing pattern of
overtime denial on at least ten more occasions (on January 7, 2008; February 2, 2008; April 16,
2008; May 31, 2008; June 22, 2008; November 4, 2008; November 11, 2008; January 19, 2009;
May 16, 2009; and June 7, 2009) before plaintiff’s termination. More specifically, the record
reflects that on several occasions, plaintiff reported, shortly after making a protected complaint
about overtime deprivation, that he had again been deprived of overtime. For example, within
six weeks of filing his 4/21/08 Complaint, plaintiff filed a grievance that he was deprived of
overtime again on May 31, 2008; within a month of filing this grievance about May 31, 2008,
plaintiff filed a grievance that he was deprived of overtime on June 22, 2008; and within a month
of filing a grievance that he was deprived of overtime on May 16, 2009, plaintiff filed a
grievance that he was deprived of overtime on June 7, 2009.
Given this temporal proximity, plaintiff satisfies the third prong of a prima facie case for
retaliatory overtime deprivation.
2. The Museum Articulates a Legitimate, Non-Discriminatory Motive for
Terminating Plaintiff, and Plaintiff Offers No Evidence that the Museum’s
Explanation is a Pretext for Retaliatory Termination
As explained above, the Museum presents a legitimate, non-retaliatory motive for
terminating plaintiff. See Part II(B)(2), supra.
Plaintiff alleges that the Union “combined the [Plumbing and Plaza Pool] shops in order
to mask retaliatory intent.” Pl.’s 56.1 ¶ 46. But plaintiff does not argue or prove that contesting
the Shop Steward election on March 3, 2009 was a protected activity. More importantly, even if
it were true that the Union insisted on subsuming the Plaza Pool in the Plumbing Shop, and

37

thereby firing both plaintiff and Kletzky, simply to retaliate against plaintiff, plaintiff provides
no evidence to support an allegation that the Museum subsumed the Plaza Pool Shop in the
Plumbing Shop to mask retaliatory intent.
Nor does plaintiff present any other evidence that the Museum’s proffered, nonretaliatory reason for terminating him is pretextual. See Part II(B)(2), supra.
Accordingly, no genuine issue of material fact exists as to whether the Museum
terminated plaintiff in retaliation for his protected activities, and the Museum is entitled to
summary judgment on plaintiff’s claim for retaliatory termination.
3. Genuine Issues of Material Fact Remain Concerning Whether the Museum Had
a Legitimate, Non-Discriminatory Motive for Denying Plaintiff Overtime
The Museum presents evidence that although Monuszko was “tasked with administering
the overtime allocation, he had absolutely no discretion to decide to whom the overtime hours
were allocated.” Noone Suppl. Decl. ¶ 11. Rather, the Museum argues, “past practice” bound
Monuszko, when overtime opportunities arose, to (1) seek volunteers from among the Plumbing
Shop employees who were already at the Museum and not otherwise scheduled to work when the
overtime work needed to be done; and (2) when the number of volunteers exceeded the number
of available overtime slots, to assign the overtime work to the person with the fewest overtime
hours. Id. ¶¶ 8–10. This evidence suggests that Monuszko made the overtime assignments in the
Plumbing Shop on a purely formulaic, rather than discretionary, basis.
The Museum also presents evidence, which plaintiff concedes, that “[m]ost of the need
for overtime” arises at the end of the 8:00 AM to 4:00 PM shift, whereas plaintiff worked from
1:00 PM to 9:00 PM, except for a brief period before December 4, 2007, when he worked from
3:00 PM to 11:00 PM. Id. ¶¶ 3–5; Def.’s Suppl. 56.1 ¶¶ 1–6. Therefore, the Museum implies,
plaintiff was ineligible for most overtime assignments.

38

But the Museum presents no evidence concerning (1) what happened on particular dates
when plaintiff alleges he was denied overtime, (2) how the Museum responded to the 4/21/08
Complaint, or (3) how the Museum responded to the grievance forms plaintiff filed alleging that
he was deprived of overtime on November 4 and 8, 2008, January 19, 2009, May 16, 2009, and
June 7, 2009. The only evidence the Museum presents concerning anybody’s response to any of
plaintiff’s grievance forms is Gomez’s handwritten statement that each of plaintiff’s first two
grievance forms “IS DENIED AFTER BEING INSTRUCTED BY MANAGEMENT THAT
THE UNION IS NOT RECOGNIZING THIS FORM AND THAT IT SHOULD BE
CONSIDERED FRIVOLOUS.” 6/20/10 Letter App’x F. Gomez’s statement does not explain
why the Union refused to recognize the forms or why plaintiff’s grievances were frivolous.
While Gomez may have disposed of plaintiff’s grievances as he did because plaintiff was not
eligible for the overtime work, the Museum provides no evidence to that effect.
These omissions in the Museum’s evidence, along with the contradictory statements in
the record concerning whether Monuszko had discretion in assigning overtime work, show that
genuine issues of material fact remain concerning whether plaintiff was eligible for the overtime
assignments he was denied and whether Monuszko’s overtime allocations were discretionary or
purely automatic.
Accordingly, plaintiff’s claim for retaliatory denial of overtime is not ripe for summary
judgment.6

6

The Museum argues incorrectly that plaintiff’s claim for retaliatory overtime deprivation is time-barred because
“according to [plaintiff’s] submission,” November 11, 2008 is “the last time [plaintiff] was denied overtime,” and
plaintiff complained to the EEOC about overtime deprivation more than 300 days later. Def. Suppl. Br. at 5. On the
contrary, the parties’ supplemental submissions reflect that June 7, 2009 is the last time plaintiff was denied
overtime, and plaintiff complained to the EEOC about overtime deprivation in his 10/16/09 Letter. Accordingly,
plaintiff’s claim for retaliatory overtime deprivation is not time-barred.

39

D. Plaintiff’s Claim that the Museum Breached the CBA
Section 301 of the Labor Management Relations Act (LMRA), 29 U.S.C. § 185(a),
governs the employer’s duty to honor the CBA, and Section 9(a) of the NLRA, 29 U.S.C.
§ 159(a), implies that unions have a duty of fair representation. White v. White Rose Food, 237
F.3d 174, 179 n.3 (2d Cir. 2001).
Plaintiff alleges that the Museum breached the CBA by terminating him, Compl. ¶¶ 8–9,
and by hiring three new Buildings Department employees within six months of terminating him.
Pl. Decl. ¶ 22; Karlin Decl. Ex. 6; Pl. Br. at 8.
Plaintiff’s claim is a “hybrid § 301/fair representation claim.”

Jourdain v. Serv.

Employees Int’l Union Local 1199, No. 9–CV–1942, 2010 WL 3069965, at *3 (S.D.N.Y. July
28, 2010) (internal quotation marks omitted). In making such a hybrid claim, plaintiff “may sue
the union or the employer, or both, but must allege violations on the part of both.” Commodari
v. Long Island Univ., 89 F. Supp. 2d 353, 365 (E.D.N.Y. 2000) (citations omitted), aff’d, 62 Fed.
App’x 28 (2003). Further, plaintiff must prove “both (1) that the employer breached a collective
bargaining agreement and (2) that the union breached its duty of fair representation.” White
Rose Food, 237 F.3d at 178. Failure to prove both that the Union breached its duty of fair
representation and that the Museum breached the CBA “dooms” a hybrid claim. Musto v.
Transport Workers Union of Am., 818 F. Supp. 2d 621, 632 (E.D.N.Y. 2011); see also Jourdain,
2010 WL 3069965, at *5 (“[T]he Union’s breach is a prerequisite to consideration of the merits
of [plaintiff’s] claim against [his] former employer.”) (quoting Young v. U.S. Postal Serv., 907
F.2d 305, 307 (2d Cir. 1990) (internal citations omitted)).

40

1. The Union Did Not Breach Its Duty of Fair Representation
A union has a duty to fairly represent all employees subject to the CBA. Musto, 818 F.
Supp. 2d at 634. This duty includes negotiating, enforcing, and administering the CBA, id., and
“fair and prompt consideration and, if dictated by controlling legal standards, processing on
behalf of employees of their claims under contract dispute resolution procedures.” Cruz v. Local
Union No. 3 of the Int’l Bhd. of Elec. Workers, 34 F.3d 1148, 1153 (2d Cir. 1994) (quoting
Ames v. Westinghouse Elec. Corp., 864 F.2d 289, 293 (3d Cir. 1998)).
A union breaches its duty of fair representation if its actions “can fairly be characterized
as so far outside a wide range of reasonableness . . . that [they are] wholly arbitrary,
discriminatory, or in bad faith.” Spellacy v. Airline Pilots Ass’n–Int’l, 156 F.3d 120, 126 (2d
Cir. 1998) (quoting Air Line Pilots Ass’n v. O’Neill, 499 U.S. 65, 78 (1991)) (internal quotation
marks omitted).
A union’s conduct is arbitrary only “when it is without a rational basis or explanation.”
Musto, 818 F. Supp. 2d at 634 (quoting Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 46
(1998)). A union has a “wide range of reasonableness” within which it may lawfully act, which
“gives the union room to make discretionary decisions and choices, even if those judgments are
ultimately wrong.” Id. (quoting Marquez, 525 U.S. at 45–46). Several courts have noted “the
need for deference to union decision-making.” Balestracci v. Gen. Dynamics Corp., 221 F.
Supp. 2d 258, 267 (D. Conn. 2002) (citing White Rose Food, 237 F.3d at 180); see also
Commodari, 89 F. Supp. 2d at 371 (“judicial review of union action must be highly deferential,
recognizing the wide latitude that [unions] need for the effective performance of their bargaining
responsibilities.”) (quoting Gvozdenovic v. United Air Lins, Inc., 933 F.2d 1100, 1106 (2d Cir.
1991)) (internal quotation marks omitted).

41

The duty of fair representation “is not breached where the union fails to process a
meritless grievance, engages in mere negligent conduct, or fails to process a grievance due to
error in evaluating the merits of the grievance.” Cruz, 34 F.3d at 1153–54 (quoting Ryan v. N.Y.
Newspaper Printing, 590 F.2d 451, 455 (2d Cir. 1979)). In contrast, a union breaches the duty
when it engages in deliberate, hostile conduct, Musto, 818 F. Supp. 2d at 635 (citing
Amalgamated Ass’n of Motor Coach Employees v. Lockridge, 403 U.S. 274, 301 (1971)), or
when its “acts of omission . . . , while not calculated to harm union members,” are “so egregious,
so far short of minimum standards of fairness to the employee and so unrelated to legitimate
union interests as to be arbitrary.” Balestracci, 221 F. Supp. 2d at 266 (quoting NLRB v. Local
282, IBT, 740 F.2d 141, 147 (2d Cir. 1984)) (citations and internal quotation marks omitted)).
A union’s conduct is discriminatory when the union “takes actions favoring some of its
members at the expense of others[,] without a legitimate purpose,” “for arbitrary or invidious
reasons.” Musto, 818 F. Supp. 2d at 635 (citations omitted). “While a union may make seniority
decisions within a wide range of reasonableness in serving the interests of the unit it represents,
such decisions may not be made solely for the benefit of a stronger, more politically favored
group over a minority group.” Id. (quoting Barton Brands Ltd. V. NLRB, 529 F.2d 793, 798–99
(7th Cir. 1976)) (citation and internal quotation marks omitted).
A union acts in bad faith when it engages in fraud, dishonesty, or other intentionally
misleading conduct. Spellacy, 156 F.3d at 126; see also Sim v. N.Y. Mailers’ Union No. 6, 166
F.3d 465, 472 (2d Cir. 1999) (“Bad faith requires a showing of fraudulent, deceitful, or dishonest
action.”) (citing Mock v. T.G. & Y. Stores Co., 971 F.2d 522, 531 (10th Cir. 1992)).
A union’s CBA interpretation “should be afforded great deference.” Morris v. Local 819,
Int’l Bhd. of Teamsters, 954 F. Supp. 573, 580 (E.D.N.Y. 1997). “In the context of interpreting

42

provisions of a CBA, a court may find that a union’s interpretation . . . was reasonable as a
matter of law, even if the court disagrees with” the union’s interpretation, “so long as the
union[‘]s actions were not so far outside a wide range of reasonableness as to constitute irrational
or arbitrary conduct.” Musto, 818 F. Supp. 2d at 635 (internal quotation marks omitted). “To
uphold the union’s action in interpreting the contract . . . , [the court’s] inquiry is limited to
whether the union took a position on the basis of an informed, reasoned judgment regarding the
merits of the [plaintiff’s] claim in light of the language” of the CBA. Spellacy, 156 F.3d at 127
(quoting Tedford v. Peabody Coal Co., 533 F.2d 952, 957 (5th Cir. 1976)) (internal quotation
marks omitted).
Plaintiff alleges that the Union breached its duty of fair representation by declining to
initiate grievance procedures when the Museum terminated him. Pl. Br. at 10. While plaintiff
does not expressly argue that the Union acted arbitrarily, his assertion that the Union deviated
from the plain language of the CBA suggests that he means to make such an argument. See id. at
9, 11. Plaintiff also argues that the Union acted in bad faith by retaliating against him for
contesting the Shop Steward election. Id. 11.
The CBA provision on which plaintiff bases his claim provides:
In the event of any layoffs of employees due to a reduction of staff,
those employees within the particular department, i.e., the Security
Department, the Buildings Department on in the title of
Departmental Technician, Senior Departmental Technician, who
were hired last shall be laid off first, and rehiring shall be in
reverse order within the particular department or title.
CBA Art. XV(2).
The Union and the Museum interpreted this provision to mean that the Museum must
consider seniority within the Security Department separately from seniority within the Buildings
Department. See Def. Br. at 23. The Union and the Museum viewed this interpretation as

43

consistent with Section 9(b) of the NLRA, which prohibits the NLRB from certifying a
bargaining unit that consists of both guards and non-guards. 29 U.S.C. § 159(b); Def’s Repl.
Mem. Supp. Mot. Summ. J. (“Def. Repl. Br.”) at 9, ECF No. 30.
Further, the Union and the Museum did not interpret the CBA as requiring the Museum
to compromise its operations by eliminating the most junior employees in the entire Buildings
Department regardless of what services the Museum needed most. Def. Repl. Br. at 10; see
6/21/09 Letter.

For these reasons, the Union and the Museum concluded that terminating

plaintiff and Kletzky conformed with the CBA. 6/21/09 Letter.
Affording this interpretation deference, see Morris, 954 F. Supp. at 580, the Court finds
that the interpretation is reasonable as a matter of law because it is not so far outside a wide
range of reasonableness as to be irrational or arbitrary. See Musto, 818 F. Supp. 2d at 635. The
CBA requires that in the event of layoffs, the Museum shall terminate employees “within” the
Buildings Department in order of reverse seniority. CBA Art. XV(2). The CBA neither requires
nor prohibits making these reverse seniority determinations by Buildings Department shop.
Furthermore, the Union and the Museum adopted the interpretation they thought made most
sense given the Buildings Department’s size, the differences between the specialized skills each
shop required, and the Museum’s needs.7 Accordingly, the Union made an informed, reasoned
judgment, in light of the CBA’s language, that plaintiff’s grievance concerning his termination
lacked merit; the Union did not act arbitrarily. See Spellacy, 156 F.3d at 127; 6/21/09 Letter.
Nor does the record contain any evidence that the Union acted in bad faith. Plaintiff
suggests that because he contested the Shop Steward election on March 3, 2009, the Union
7

In dismissing the unfair labor practice charge plaintiff filed with NLRB Region 2, the NLRB found that the Union
had deemed plaintiff’s layoff proper while negotiating with the Museum “according to the bargaining history and
past practice between the [Museum] and the Union.” 10/30/09 Letter. Because the record contains no evidence
concerning such “past practice,” the Court cannot determine whether past practice constitutes yet another reason to
find that the Union and the Museum interpreted the CBA reasonably.

44

refused to grieve plaintiff’s termination in June 2009. Pl. Br. at 9, 11. However, plaintiff
provides no evidence concerning how the Union responded to his election challenge or whether
anybody at the Union said or did anything between March 3, 2009 and his termination to make
him believe that anybody at the Union resented his election challenge. Further, plaintiff ignores
that the Union’s position during layoff negotiations with the Museum affected Kletzky too;
plaintiff provides no evidence that the Union advocated sacrificing Kletzky solely to eliminate
plaintiff. In sum, plaintiff presents no evidence that the Union engaged in fraud, dishonesty, or
other intentionally misleading conduct with an improper intent or motive. See Spellacy, 156
F.3d at 126. Accordingly, the Court cannot find that the Union acted in bad faith by refusing to
grieve plaintiff’s termination.
Because plaintiff fails to show that the Union’s decision not to grieve his termination was
arbitrary, discriminatory, or in bad faith, he fails to show that the Union breached its duty of fair
representation. As a result, plaintiff’s claim that the Museum breached the CBA fails as a matter
of law.
2. The Museum Did Not Breach the CBA
As an initial matter, the claim for breach of contract fails because plaintiff does not show
that the Union breached its duty of fair representation. See White Rose Food, 237 F.3d at 178;
Part II(D)(I), supra. Additionally, plaintiff’s claim that the Museum violated his seniority rights
under the CBA by terminating him fails because the CBA entitles the Museum to assess relative
seniority by shop. See Part II(D)(1), supra. Finally, plaintiff’s claim that the Museum violated
his reinstatement rights under the CBA fails because the record reflects that the Museum did not
replace plaintiff. See Part II(B)(1)(ii), supra.

45

CONCLUSION
The Museum’s motion for summary judgment is granted as to plaintiff’s claims of
discrimination in violation of Title VII, retaliatory termination in violation of Title VII, and
breach of the CBA, but denied as to plaintiff’s claim of retaliatory deprivation of overtime work
in violation of Title VII.

SO ORDERED.
Dated: March 21, 2013
Brooklyn, New York
_____________________/s/_______________
JOAN M. AZRACK
UNITED STATES MAGISTRATE JUDGE

46