Clark v. CSX Transportation Inc. et al

Filing 20

MEMORANDUM-DECISION and ORDER - That BRS's 12 Motion to Dismiss is DENIED. That BRS fiel the appropriate responsive pleadings with the time allotted by the rules. Signed by Chief Judge Gary L. Sharpe on 9/29/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
TODD CLARK,
Plaintiff,

5:13-cv-1596
(GLS/ATB)

v.
CSX TRANSPORTATION, INC. et
al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Hacker, Murphy Law Firm
7 Airport Park Boulevard
Latham, NY 12110-0104
FOR THE DEFENDANTS:
CSX Transportation, Inc.
Nixon, Peabody Law Firm
Key Towers at Fountain Plaza
40 Fountain Plaza
Suite 500
Buffalo, NY 14202
Brotherhood of Railroad Signalmen
Office of William L. Phillips
33 N. LaSalle Street, #2100
Chicago, IL 60602
Gary L. Sharpe
Chief Judge

RYAN M. FINN, ESQ.

SUSAN C. RONEY, ESQ.

WILLIAM L. PHILLIPS, ESQ.

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Todd Clark commenced this action against defendants CSX
Transportation, Inc. and Brotherhood of Railroad Signalmen (BRS),
alleging discrimination based on race and disability pursuant to Title VII of
the Civil Rights Act of 1964, 1 the Americans with Disabilities Act, 2 and 42
U.S.C. § 1981.3 (See generally Compl., Dkt. No. 7.) CSX filed an answer
to the complaint, (Dkt. No. 11), and BRS filed a pre-answer motion,
pursuant to Fed. R. Civ. P. 12(b)(6), seeking dismissal of all of Clark’s
claims against it. (Dkt. No. 12.) For the reasons that follow, the motion to
dismiss is denied.
II. Background4
Clark, an individual of Native American descent, was, at the time
relevant to this action, an employee of CSX, and a member of BRS Local
1

See 42 U.S.C. §§ 2000e–2000e-17.

2

See 42 U.S.C. §§ 12101-12213.

3

Clark has also asserted additional claims against CSX only, regarding an allegedly
illegal search of his vehicle. (Compl. ¶¶ 106-22.) As the instant motion to dismiss has been
brought by BRS alone, those claims are not at issue here.
4

Unless otherwise noted, the facts are drawn from Clark’s complaint and presented in
the light most favorable to him.

2

93, a labor organization. (Compl. ¶¶ 7, 8-11.) Clark alleges that “[f]rom the
beginning of his employment with [CSX, he] has been subjected to
inappropriate racial and ethnic slurs concerning his Native American
heritage.” (Id. ¶ 11.) He has been subjected to discriminatory conduct by
both coworkers and his supervisor, in the form of stereotypical and
offensive jokes and comments. (Id. ¶¶ 14-19.) Many of these incidents
occurred in front of other coworkers and supervisors. (Id. ¶¶ 15, 17-18.)
Clark complained to his supervisor about this conduct, but the offending
parties were “not disciplined in any way for the conduct,” (id. ¶¶ 15, 17),
and he alleges that his superiors “condone the behavior by refusing to take
action to stop [it],” (id. ¶ 19).
In February 2013, a supervisor performed a search of Clark’s vehicle,
at which time an unopened case of beer was discovered in Clark’s truck.
(Id. ¶¶ 20-21, 25.) Although Clark did not drink the beer while on duty, he
was accused of being an alcoholic and endangering his coworkers. ( Id.
¶¶ 23, 25.) Clark was placed on suspension without pay. (Id. ¶ 20.)
Several days after his suspension began, Clark was informed that his
alleged possession of alcohol at work violated both federal law and CSX
policies. (Id. ¶ 34.) However, identical behavior by other employees went
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unaddressed by CSX management, and Clark therefore informed his
employer that he had hired a lawyer because he felt “offended” and
“singled out” for punishment. (Id. ¶¶ 32-33, 36-37.)
Upon conveying these concerns to both his employer and the union,
Clark was told by BRS that “the only way for [Clark] to keep his job was to
tell [CSX] that he had been drinking on the job (a lie) and that he wanted to
seek treatment.” (Id. ¶¶ 38-39.) Clark was thus “threatened, bullied and
coerced [by BRS] into lying about the situation in order to save his job.”
(Id. ¶ 51.) According to Clark, CSX and BRS officials “decided and agreed
upon [Clark]’s punishment before affording [him] the opportunity to defend
against the charges at a hearing.” (Id. ¶ 50.) A hearing was ultimately
scheduled for April 25, 2013, after an unexplained delay, but at some point
prior to that, Clark filed a complaint against BRS with the New York State
Division of Human Rights (DHR). (Id. ¶¶ 40, 58.) BRS refused to prepare
or assist Clark in anticipation of the hearing. (Id. ¶¶ 59-62.) Clark
complained that he felt BRS was refusing to assist him because of his
earlier complaints “about the manner in which he had been treated.” ( Id.
¶¶ 65, 70)
During this same period, shortly after the incident at issue occurred,
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Clark was contacted by an Employee Assistance Professional (EAP)
counselor employed by CSX. (Id. ¶ 42.) According to Clark, during their
phone conversation, the EAP counselor accused him of being an alcoholic,
and urged him to admit that he was under the influence of alcohol at work,
despite his insistence that this had never been the case. (Id. ¶¶ 43-47.) At
one point, the counselor stated that it was common knowledge that
“‘signalmen are a bunch of drunks.’” (Id. ¶ 46.) After this conversation
concluded, the counselor then “informed [BRS] and [CSX] officials about
[the] conversation,” (id. ¶ 48), who then “openly discussed the matter,” (id.
¶ 50), “very publicly[,] caus[ing] the situation to become part of the
[c]ompany ‘rumor mill,’” (id. ¶ 63). This disclosure caused Clark “extreme
humiliation, embarrassment, stigma and ridicule.” (Id.)
Clark ultimately agreed to attend alcohol rehabilitation counseling, ( id.
¶ 59), but alleges that his “punishment was disproportionate to the alleged
violation,” (id. ¶ 22), and that CSX alcohol policies were not uniformly
enforced, to his detriment, (id. ¶ 74). Clark alleges that he has continued to
experience “adverse working conditions[,] increased scrutiny and
oversight[,] targeted drug and alcohol testing[, and] loss of benefits” since
returning to work. (Id. ¶ 77.) In January 2014, Clark commenced this
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action. (See generally id.)
III. Standard of Review
The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled
and will not be repeated here. For a full discussion of the standard, the
court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz,
LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).
IV. Discussion
BRS asserts in its motion that all of Clark’s claims against it should
be dismissed for failure to state a claim. (Dkt. No. 12, Attach. 1 at 4-15.)
Specifically, it argues that Clark’s discrimination and retaliation claims are
“utterly implausible,” (id. at 4-12), that BRS’s acquiescence in the
discriminatory practices of CSX does not subject it to liability, (id. at 12-13),
and that Clark has inadequately pleaded that BRS disclosed confidential
information in violation of the ADA, (id. at 13-15). In response, Clark
argues that he has properly pleaded his claims against BRS. (Dkt. No. 16
at 4-11.) For the reasons that follow, BRS’s motion to dismiss is denied.
Under Title VII,5 it is “an unlawful employment practice for an
5

“Both the Supreme Court and Second Circuit have treated the substantive issues
arising under Title VII and § 1981 identically.” Staff v. Pall Corp., 233 F. Supp. 2d 516, 527
(S.D.N.Y. 2002) (citing Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989); Hawkins
v. 1115 Legal Serv. Care, 163 F.3d 684, 693 (2d Cir. 1998)), aff’d 76 F. App’x 366 (2d Cir.

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employer . . . 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. § 2000e-2(a)(1). Discrimination
claims are analyzed under the McDonnell Douglas burden-shifting rules,
which place upon the plaintiff the initial burden of making out a prima facie
case of discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973). To satisfy this initial burden, the plaintiff “‘must show: (1)
he belonged to a protected class; (2) he was qualified for the position he
held; (3) he suffered an adverse employment action; and (4) that the
adverse employment action occurred under circumstances giving rise to an
inference of discriminatory intent.’” Brown v. City of Syracuse, 673 F.3d
141, 150 (2d Cir. 2012) (quoting Holcomb v. Iona Coll., 521 F.3d 130, 138
(2d Cir. 2008)).
Title VII further provides that “[i]t shall be an unlawful employment
practice for an employer to discriminate against any of his employees . . .
because [that employee] has opposed any practice made an unlawful
2003). Specifically, as pertinent to the parties’ arguments here, “[a] plaintiff’s efforts to
establish the [intent] element of a § 1981 claim are subject to the same burden-shifting
analysis as intentional discrimination claims brought under Title VII.” Jenkins v. NYC Transit
Auth., 201 F. App’x 44, 45-46 (2d Cir. 2006).

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employment practice . . . or because he has made a charge, testified,
assisted, or participated in any manner in an investigation, proceeding, or
hearing.” 42 U.S.C. § 2000e-3(a). To establish a prima facie case of
retaliation under Title VII, a plaintiff must show: “(1) participation in a
protected activity; (2) that 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 action.” McMenemy v. City
of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001).
Discrimination by unions is also prohibited by Title VII, which makes it
“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. § 2000e-2(c)(1); see Yerdon v. Henry, 91 F.3d 370, 375 (2d Cir.
1996) (finding that a labor union could be liable under Title VII). A Title VII
claim brought against a union, however, is evaluated differently than such a
claim against an employer. To succeed on his claim, a plaintiff first must
show that “the [u]nion breached its duty of fair representation to him.”
Oparji v. United Fed’n of Teachers, 418 F. Supp. 2d 139, 147 (E.D.N.Y.
2006). A union breaches its duty of fair representation when (1) “its
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conduct toward a member . . . is arbitrary, discriminatory, or in bad faith,”
Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 44 (1998), and (2) the
alleged misconduct injures the plaintiff, Spellacy v. Airline Pilots
Assoc.-Int’l, 156 F.3d 120, 130 (2d Cir. 1998). If a plaintiff establishes a
breach of the duty of fair representation, he then “must show some
indication that the union’s actions were motivated by unlawful
discrimination or retaliation.” Oparji, 418 F. Supp. 2d at 146.
The analysis is virtually the same for alleged violations of the ADA.
See Sarno v. Douglas Elliman-Gibbons & Ives, Inc., 183 F.3d 155, 159 (2d
Cir. 1999) (noting that “it is appropriate to apply the framework used in
analyzing retaliation claims under Title VII in analyzing a claim of retaliation
under the ADA”); Gerena v. Local 670 Stationary Eng’rs & Bldg. Servs.
Union, No. 12-Civ-7484, 2013 WL 3486976, at *4 (S.D.N.Y. July 10, 2013).
The ADA prohibits discrimination against any “qualified individual on the
basis of disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training, and other terms, conditions, and privileges of employment.” 42
U.S.C. § 12112(a). To state a prima facie case of disability discrimination
under the ADA, a plaintiff must show that:
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(1) his employer is subject to the ADA; (2) he was disabled
within the meaning of the ADA;6 (3) he was otherwise
qualified to perform the essential functions of his job, with or
without reasonable accommodation; and (4) he suffered
adverse employment action because of his disability.
Giordano v. City of N.Y., 274 F.3d 740, 747 (2d Cir. 2001) (quoting
Heyman v. Queens Vill. Comm. for Mental Health for Jamaica Cmty.
Adolescent Program, Inc., 198 F.3d 68, 72 (2d Cir. 1999)).
Furthermore, the ADA has additional provisions governing the
confidentiality of disability-related information. Specifically, it requires that
employers not make inquiries of employees pertaining to their disabilities
unless the inquiries are related to the job or are consistent with a business
necessity. See 42 U.S.C. § 12112(d)(4). In addition, it requires that the
information revealed be kept confidential. See id. § 12112(d)(3)(B)
(“[I]nformation obtained regarding the medical condition or history . . . is
treated as a confidential medical record.”).
Here, BRS argues that “all claims of discrimination and retaliation by .
. . BRS should be dismissed for failure to state a claim.” (Dkt. No. 12,
Attach. 1 at 4-12.) Its primary argument is that it has an “‘alternative

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The ADA defines “disability” as: “(A) a physical or mental impairment that substantially
limits one or more major life activities of an individual; (B) a record of such an impairment; or
(C) being regarded as having such an impairment.” 42 U.S.C. § 12102(1).

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explanation’ so ‘obvious’ as to render [Clark]’s discrimination and retaliation
claims utterly implausible,” namely, that Clark’s suspension and
subsequent return-to-work conditions were mandated by federal
regulations and CSX policy. (Id. at 5.) Thus, the crux of BRS’s argument
is that it did not breach the duty of fair representation because “[i]t is utterly
implausible that, by discouraging . . . Clark from testing the disciplinary and
grievance and arbitration processes, . . . BRS represented him unfairly.”
(Id. at 9.) While BRS may or may not ultimately be successful in proving
this assertion, the court is required, at this juncture, to accept all allegations
in the complaint as true, and make all reasonable inferences in favor of the
nonmoving party, Clark. See Fowlkes v. Adamec, 432 F.3d 90, 95 (2d Cir.
2005) (citation omitted) (in reviewing a motion to dismiss, a court “must
accept the facts alleged in the complaint as true and construe all
reasonable inferences in [the plaintiff’s] favor”). Here, Clark alleges that
BRS breached its duty of fair representation in a manner discriminatory to
him, because it “threatened, bullied and coerced [him] into lying about the
situation,” (Compl. ¶ 51), and pressured him into attending an alcohol
rehabilitation program instead of disputing the infractions of which he was
accused, (id. ¶¶ 52, 59, 68). He further alleges that CSX was selectively
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enforcing its alcohol use policies against him because of his perceived
disability, (id. ¶ 74), and that BRS “acquiesced in . . . and failed to take
appropriate action against” these allegedly discriminatory practices,” ( id.
¶ 79). While BRS argues that its representation of Clark in this matter was
reasonable, it would be premature to make such a finding at this juncture,
and the court finds that, at this stage, Clark has adequately pleaded causes
of action for disparate treatment and retaliation.
BRS alternatively argues that all claims alleging that it allowed or
condoned the discrimination and disparate treatment against Clark should
be dismissed for failure to state a claim. (Dkt. No. 12, Attach. 1 at 12-13.)
Specifically, citing only cases from other circuits, BRS argues that labor
unions have no affirmative duty to prevent harassment in the workplace or
to investigate discrimination by an employer, and instead are subject to
liability “only if ‘the [u]nion itself instigated or actively supported the
discriminatory acts.’” (Id. (quoting Eliserio v. United Steelworkers of Am.
Local 310, 398 F.3d 1071, 1076-77 (8th Cir. 2005)).)
Contrary to BRS’s narrow interpretation of potential union liability,
district courts within the Second Circuit hold that a union “may be held
liable for implicitly condoning [disparate] treatment by failing to take action
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against it.” Martin v. New York State Dep’t of Corr. Servs., 115 F. Supp. 2d
307, 315 (N.D.N.Y. 2000) (citing Nweke v. Prudential Ins. Co. of Am., 25 F.
Supp. 2d 203, 220 (S.D.N.Y. 1998) (holding that “a union’s role in ratifying
an employer’s discriminatory practice could be sufficient to compel a
finding of liability against it”); see United States v. City of Buffalo, 457 F.
Supp. 612, 639 (W.D.N.Y. 1978) (holding that “[t]acit union acquiescence in
an employer’s discriminatory practices is sufficient to render it liable”);
United States v. Bethlehem Steel Corp., 312 F. Supp. 977, 990 (W.D.N.Y.
1970) (“The notice of such discriminatory practices to [the union] placed
upon [it] the duty to take whatever steps were lawful to alleviate the
discrimination and the effects of such discrimination upon its . . .
membership.”), rev’d in part on other grounds, 446 F.2d 652 (2d Cir.
1971)). Further, here, Clark alleges more than mere acquiescence on the
part of BRS; he alleges that the union participated in the selective
enforcement of both legal regulations and company policy when it unduly
delayed his disciplinary hearing and conspired with CSX to determine a
punishment before any hearing took place, (Compl. ¶¶ 40, 50), disclosed
confidential information regarding his medical condition, (id. ¶ 50),
“threatened, bullied and coerced” him into lying about drinking alcohol on
13

the job, (id. ¶ 51), and refused to assist him throughout the disciplinary
process, (id. ¶¶ 58-62), all in retaliation for speaking out against the
treatment he was receiving and for filing a complaint against BRS with the
DHR, (id. ¶¶ 58, 65). For this reason, as well as those discussed above, at
this juncture, Clark has adequately stated a claim for discrimination and
retaliation against BRS. Accordingly, the court declines to dismiss Clark’s
claims on this basis.
With respect to Clark’s allegation that BRS representatives disclosed
confidential information regarding his disability, in violation of the ADA,
(Compl. ¶ 99), BRS argues that this claim should be dismissed because
there are insufficient facts pleaded in the complaint to allow the court to
draw an inference in Clark’s favor that confidential information regarding
his medical condition or history was disclosed. (Dkt. No. 12, Attach. 1 at
13-15.) As described below, BRS asks the court to draw inferences in its
favor and dismiss this claim. (Id.)
For example, BRS asserts that from Clark’s “allegation that the EAP
[counselor] ‘informed [BRS] and [CSX] officials about their conversation,’”
the court should only “infer[ ] that she told [CSX] and . . . BRS that the
conversation had taken place.” (Id. at 14.) Similarly, BRS asks the court to
14

infer from Clark’s allegation that defendants “‘openly discussed the matter’”
that they were merely engaging in collective bargaining, and not “that they
improperly disclosed protected information.” (Id.) While it will ultimately be
Clark’s burden to substantiate his allegations with record evidence support,
at this stage, all allegations in the complaint are assumed to be true and all
reasonable inferences are drawn in favor of the nonmoving party. See
Fowlkes, 432 F.3d at 95. Under this standard, Clark has plausibly pleaded
a claim under 42 U.S.C. § 12112(d)(4). See, e.g., Desano v. Blossom S.,
LLC, 553 F. Supp. 2d 247, 251 (W.D.N.Y. 2008).
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that BRS’s motion to dismiss (Dkt. No. 12) is DENIED;
and it is further
ORDERED that BRS file the appropriate responsive pleadings within
the time allotted by the rules; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.

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September 29, 2014
Albany, New York

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