Sabater v. Montefiore Medical Center et al

Filing 72

OPINION AND ORDER: re: 49 MOTION for Summary Judgment . filed by Montefiore Medical Center, 43 MOTION for Summary Judgment . filed by Local Union 1199, SEIU. For the foregoing reasons, Defendant 1199SEIU United Healt hcare Workers Easts motion for summary judgment is GRANTED. Defendant Montefiore Medical Centers motion for partial summary judgment is GRANTED. Counsel for Plaintiff and Defendant Montefiore Medical Center shall appear for a telephonic status conference in the case on May 6, 2020, at 11:00 a.m. At the appointed time, counsel shall call [phone], and use the access code 9300838. The Clerk of Court is directed to close the motions at Docket Numbers 43 and 49, and to terminate Defe ndant 1199SEIU United Healthcare Workers East (incorrectly called Local Union 1199, SEIU) as a party to this case. SO ORDERED. (Signed by Judge J. Paul Oetken on 4/6/2020) *** Party Local Union 1199, SEIU terminated. (js) Modified on 4/6/2020 (js).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
AARON SABATER,
Plaintiff,
17-CV-7135 (JPO)
-vOPINION AND ORDER
MONTEFIORE MEDICAL CENTER
and LOCAL UNION 1199, SEIU,
Defendants.

J. PAUL OETKEN, District Judge:
Plaintiff Aaron Sabater brings this discrimination and duty-of-fair-representation action
against Defendants Montefiore Medical Center (“Montefiore”) and 1199SEIU United Healthcare
Workers East 1 (“1199”). Sabater alleges that Montefiore, his employer, discriminated against
him on the basis of race and retaliated against him when he complained of discrimination, in
violation of 42 U.S.C. § 1981 (“Section 1981”) and the New York City Human Rights Law
(“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq. (See Dkt. No. 1 (“Compl.”).) He alleges
that Montefiore and 1199, his union, violated the Labor Management Relations Act of 1947
(“LMRA”) Sec. 301, 29 U.S.C. § 185, and New York state law. (See id.) Both defendants have
moved for summary judgment. For the reasons that follow, 1199’s motion for summary
judgment is granted, and Montefiore’s motion for partial summary judgment is granted.
I.

Background
Sabater was hired at Montefiore as a temporary employee in May 2011 as a Senior

Accounting Clerk. (Dkt. No. 51 (“Montefiore SOF”) ¶ 5.) In August 2011, he was transferred to

1

Defendant 1199SEIU United Healthcare Workers East was incorrectly called “Local
Union 1199, SEIU” when this action was filed. (Dkt. No. 44 at 1.)

1

a Billing Representative position. (Montefiore SOF ¶ 6.) In 2013, a permanent position became
available, and paperwork was submitted to transfer Sabater into that position and change his
status from temporary to permanent. (Montefiore SOF ¶¶ 18, 20.) However, around March 9,
2015, Sabater appeared on a list of temporary employees. (Montefiore SOF ¶ 21.) While the
paperwork was submitted to change Sabater’s status in 2013, it had never been processed.
(Montefiore SOF ¶¶ 22–23.) On April 1, 2015, the request to transfer Sabater to a permanent
position was resubmitted. (Montefiore SOF ¶ 24.) As a result, management in his department
was under the impression that Sabater’s status had been successfully changed. (Montefiore SOF
¶ 25.) Sabater disputes the notion that this impression was erroneous and asserts that his status
was successfully changed in 2015. (Dkt. No. 67 (“Montefiore CSOF”) ¶¶ 24–25.)
In late 2014, Sabater complained about his supervisor, Alex Monard. (Montefiore SOF
¶ 37.) While there is some factual dispute about the content of those complaints, Sabater asserts
that he complained of discrimination and abuse. (Montefiore CSOF ¶ 37.) On August 8, 2016,
Sabater called the Compliance Hotline complaining of harassment by his supervisors.
(Montefiore CSOF ¶¶ 46–49.) When he ultimately discussed the complaint with Human
Resources, Sabater alleges, he complained about discrimination as well as harassment.
(Montefiore CSOF ¶¶ 50–56.) Sabater claims that he was reassigned to the Scanning Room
following these complaints, but Montefiore disputes this fact. (Montefiore CSOF ¶ 36.)
Montefiore is a member of the League of Voluntary Hospitals and Homes of New York,
which is party to a Collective Bargaining Agreement (“CBA”) with 1199. (Dkt. No. 45 (“1199
SOF”) ¶ 5.) Pursuant to the CBA, 1199 filed a class grievance around Fall 2010 because 1199
believed that the League of Voluntary Hospitals and Homes of New York was violating the CBA
with respect to the overuse of non-permanent employees. (1199 SOF ¶¶ 6–7.) After six years,

2

on November 2, 2016, a stipulation was executed to settle the class grievance. (1199 SOF ¶ 28.)
The stipulation provided in relevant part that:
(a) Montefiore would provide 1199 with a monthly list of temporary employees and
information concerning the nature of their temporary assignments; (b) Montefiore would,
in its sole discretion, extend employment offers to current temporary employees who had
worked beyond the contractual limit; [and] (c) any current employee who was not
extended an offer of employment would be terminated within sixty (60) days of the
execution of the Stipulation.
(1199 SOF ¶ 29.) Following the execution of the stipulation, Montefiore declared a hiring
freeze. (1199 SOF ¶ 34.) 1199 learned about the hiring freeze when Montefiore announced it to
its employees. (1199 SOF ¶¶ 35–36.)
Sabater’s name appeared on a list of temporary employees who were employed beyond
the contractual time limit following the execution of the stipulation. (Montefiore SOF ¶ 74.)
Because he was classified as a temporary employee, he needed to be terminated pursuant to the
stipulation if he could not be placed in a permanent position before January 1, 2017. (Montefiore
SOF ¶ 75.) While there were efforts made to place Sabater in a permanent position, due to the
hiring freeze those efforts failed. (Montefiore SOF ¶¶ 77–81.) Sabater continues to deny that he
was a temporary employee during this period. (Montefiore CSOF ¶¶ 77–81.) Eventually,
pursuant to the stipulation, Montefiore terminated all thirty-seven of the temporary employees
who had worked beyond the contractual limit, including Sabater. (1199 SOF ¶¶ 37–38.)
Following his termination, Sabater sought 1199’s assistance. (1199 SOF ¶¶ 39–40.) In
January 2017, his Organizer, Keith Johnson, said that he would look into Sabater’s termination.
(1199 SOF ¶ 43.) Sabater spoke on the phone with Johnson on ten occasions about the situation.
(1199 SOF ¶ 44.) Johnson informed Sabater that he was “working on it” and referred him to
Johnson’s supervisors. (1199 SOF ¶¶ 45–47.) Sabater spoke to Union Vice President Gladys

3

Wrenick on two or three occasions, and she informed him that 1199 was attempting to assist him
with his termination. (1199 SOF ¶¶ 48–51.)
1199’s initial assessment was that Sabater was wrongly classified as a temporary
employee. (1199 SOF ¶ 53.) While Johnson and Wrenick told Sabater that they were trying to
get him back to work, they never told him that 1199 was grieving or arbitrating his termination.
(1199 SOF ¶¶ 54–59.) 1199 asserts that Montefiore insisted to it that Sabater was a temporary
employee. (1199 SOF ¶ 62.) However, Sabater disputes this and points to a document
indicating that Montefiore acknowledged his temporary status was erroneous. (See Dkt. No. 63
(“1199 CSOF”) ¶ 62.) 1199 subsequently conducted an investigation into Sabater’s claims and
came to the conclusion that it could not independently verify his status as a temporary or
permanent employee. (1199 SOF ¶¶ 63–64.) As a result, 1199 decided against filing a formal
grievance on Sabater’s behalf. (1199 SOF ¶ 65.)
However, 1199 did contact the arbitrator who retained jurisdiction over the Class
Grievance expressing its concerns about Montefiore’s actions under the stipulation, including the
hiring freeze and subsequent termination of temporary employees. (1199 SOF ¶¶ 67–69.) 1199
provided the arbitrator with a list of individuals it believed were negatively impacted by the
stipulation, which included Sabater. (1199 SOF ¶ 70.) In May 2017, Montefiore and 1199
agreed to discuss getting the temporary workers rehired. (1199 SOF ¶ 71.) Indeed, Johnson
called Sabater on August 3, 2017 to confirm that he was still interested in returning to work at
Montefiore. (1199 SOF ¶ 72.) Sabater initiated this action six weeks later, on September 19,
2017. (See Compl.)
II.

Legal Standard
Summary judgment under Rule 56 is appropriate where “there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
4

56(a). A fact is material if it “might affect the outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if, considering
the record as a whole, a rational jury could find in favor of the non-moving party. See Ricci v.
DeStefano, 557 U.S. 557, 586 (2009).
“On summary judgment, the party bearing the burden of proof at trial must provide
evidence on each element of its claim or defense.” Cohen Lans LLP v. Naseman, No. 14 Civ.
4045, 2017 WL 477775, at *3 (S.D.N.Y. Feb. 3, 2017) (citing Celotex Corp. v. Catrett, 477 U.S.
317, 322–23 (1986)). “If the party with the burden of proof makes the requisite initial showing,
the burden shifts to the opposing party to identify specific facts demonstrating a genuine issue
for trial, i.e., that reasonable jurors could differ about the evidence.” Clopay Plastic Prods. Co.
v. Excelsior Packaging Grp., Inc., No. 12 Civ. 5262, 2014 WL 4652548, at *3 (S.D.N.Y. Sept.
18, 2014). The court views all “evidence in the light most favorable to the non-moving party,”
and summary judgment may be granted only if “no reasonable trier of fact could find in favor of
the nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal quotation
marks omitted) (second quoting Lunds, Inc. v. Chem. Bank, 870 F.2d 840, 844 (2d Cir. 1989)).
III.

Discussion
A.

1199’s Motion for Summary Judgment

1199 moves for summary judgment on Sabater’s hybrid LMRA § 301 claim against it.
To bring a hybrid LMRA § 301 claim, “[an] employee must allege both (1) that the employer
breached a collective bargaining agreement and (2) that the union breached its duty of fair
representation in redressing her grievance against the employer.” Doyle v. United Airlines, Inc.,
914 F. Supp. 2d 325, 338 (E.D.N.Y. 2012) (internal quotation marks omitted) (quoting White v.
White Rose Food, 128 F.3d 110, 113 (2d Cir. 1997)). 1199 argues that it never breached its duty
of fair representation, and thus Sabater’s claim against it must fail.
5

A breach of a union’s duty of fair representation must involve “conduct toward a member
. . . [that] is arbitrary, discriminatory, or in bad faith.” Vaca v. Sipes, 386 U.S. 171, 190 (1967).
And “[a]ny substantive examination of a union’s performance . . . must be highly deferential,
recognizing the wide latitude that [unions] need for the effective performance of their bargaining
responsibilities. Airline Pilots Ass’n, Int’l v. O’Neill, 499 U.S. 65, 78 (1991). Sabater argues
that 1199 acted arbitrarily when it failed to formally grieve his alleged misclassification as a
temporary employee and subsequent termination, and in bad faith when it falsely led him to
believe his case would be grieved. (See Dkt. No. 60 at 17–21.)
First, Sabater has failed to provide any evidence to suggest that 1199 acted arbitrarily
when it declined to formally grieve his case. “A union’s actions are ‘arbitrary only if, in light of
the factual and legal landscape at the time of the union’s actions, the union’s behavior is so far
outside a wide range of reasonableness as to be irrational.’” Vaughn v. Air Line Pilots Ass’n,
Int’l, 604 F.3d 703, 709 (2d Cir. 2010) (quoting Air Line Pilots Ass’n-Int’l v. O’Neill, 499 U.S.
65, 67 (1991)). 1199’s initial assessment of the case was that Sabater was miscoded as a
temporary employee and should be reinstated. (See Dkt. No. 62-10 at 3–4.) Sabater argues that
1199 treated his complaint about his erroneous termination in an “arbitrary and perfunctory
manner” when it decided that it could not independently verify his status as a permanent
employee and declined to file a formal grievance. (Dkt. No. 60 at 21.)
1199 explains that when it began to investigate Sabater’s claims, it determined that it had
no documentary evidence to prove he was a permanent employee. (See Dkt. No. 46-3 at 69:13–
72:16.) As a result, 1199 declined to file a grievance on behalf of Sabater. (See 1199 SOF ¶ 65.)
While Sabater points to internal Montefiore emails demonstrating that he was considered a
permanent employee (see Dkt. Nos. 62-8 to 62-9), he has not shown, or even asserted, that 1199

6

was privy to any of this information when it declined to grieve his case. This is critical, because
1199’s actions can only be considered “arbitrary” based on the “factual and legal landscape” at
the time it declined to file a grievance on Sabater’s behalf. See Vaughn, 604 F.3d at 709
(quoting O’Neill, 499 U.S. at 67).
Sabater also points to a document that seems to suggest that Montefiore admitted to 1199
that there was an error in his status. (See Dkt. No. 62-10 (“Management admits there is an error
in status but claims they must go through the formalities of laying off [Sabater] until his status is
resolved.”).) He suggests that this is evidence that 1199 did have a factual basis to pursue his
grievance. (See 1199 CSOF ¶ 62.) The “wide range of reasonableness” standard allows unions
to “make discretionary decisions and choices, even if those judgments are ultimately wrong.”
Marquez v. Screen Actors Guild, Inc., 525 U.S. 33, 45–46 (1998). Even if Sabater is correct that
he was erroneously coded as a temporary employee, and 1199 made the incorrect judgment that
it did not have enough information to file a grievance on his behalf, that decision alone is not
legally sufficient to support a claim that 1199’s actions were arbitrary. 2 This is especially true
because 1199 did take steps to assist Sabater. 1199 alerted an arbitrator who already had
jurisdiction over the class grievance that Sabater was among those negatively affected by how
Montefiore chose to comply with the stipulation. (1199 SOF ¶¶ 67–70.) It is undisputed that

2

Sabater also points to another union member, Vilma Caicedo, who had her status
changed simply by way of contacting the Director of Payroll as evidence that 1199 acted
arbitrarily or in bad faith. (See Dkt. No. 60 at 20; see also Dkt. No. 62-13.) However, Sabater
has failed to show, or even assert, either that he was similarly situated to Caicedo in any way
other than the fact that Montefiore failed to update her status to permanent, or that 1199 provided
her any assistance in updating her status that was not afforded to him. (See Dkt. No. 60 at 20.)
A single conclusory paragraph in Sabater’s opposition accusing 1199 of acting arbitrarily or in
bad faith cannot defeat 1199’s motion for summary judgment on this ground. See D’Amico v.
City of New York, 132 F.3d 145, 149 (2d Cir. 1998) (“The non-moving party may not rely on
mere conclusory allegations or speculation.”)

7

through that avenue, 1199 was attempting to secure relief for those who were terminated due to
the stipulation, including Sabater. (1199 SOF ¶¶ 71–72.) As “long as the union acts in good
faith, the courts cannot intercede on behalf of employees who may be prejudiced by rationally
founded decisions which operate to their particular disadvantage.” Barr v. United Parcel Serv.,
Inc., 868 F.2d 36, 43–44 (2d Cir. 1989) (citation omitted). Here, while Sabater may disagree
with the actions that 1199 took on his behalf, those actions were not so irrational as to be
considered arbitrary. 3
Second, Sabater has failed to provide any evidence that 1199 acted in bad faith by
misleading him into believing his case would be formally grieved. A “union acts in bad faith
when it acts with an improper intent, purpose, or motive. Bad faith encompasses fraud,
dishonesty, and other intentionally misleading conduct.” Spellacy v. Airline Pilots Ass’n-Int’l,
156 F.3d 120, 126 (2d Cir. 1998) (citation omitted). While Sabater asserts that 1199 led him to
believe it would be filing a formal grievance on his behalf, he admits that he was never told by
anyone he spoke to that his termination was being grieved or that it would go to arbitration. (See
1199 CSOF ¶¶ 54–59.) The only evidence Sabater offers that he was led to believe that his case
would be grieved was that he told a union organizer that he wanted “to be made whole.” (See
1199 CSOF ¶¶ 54–55; Dkt. No. 62-11.) It does not follow from the fact that he expressed his
wishes to 1199 that the union agreed that it would in fact file a formal grievance. Thus, Sabater

3

Sabater also gestures at a genuine dispute of fact regarding “[w]hether [1199] is
using . . . Sabater’s ‘temporary status’ as pretext for its failure to grieve the case.” (Dkt. No. 60
at 15.) However, Sabater points to no evidence suggesting that 1199’s failure to file a formal
grievance was in any way pretextual. Because Sabater “may not rely on mere conclusory
allegations or speculation,” this allegation cannot defeat 1199’s motion for summary judgment.
See D’Amico, 132 F.3d at 149.

8

has failed to produce any evidence to suggest that 1199 did anything to intentionally mislead him
into thinking that a formal grievance would be filed on his behalf.
Accordingly, based on the undisputed facts, 1199 did not breach its duty of fair
representation and its motion for summary judgment is granted. 4
B.

Montefiore’s Motion for Partial Summary Judgment

Montefiore moves for summary judgment on Sabater’s retaliation claims under Section
1981 and the NYCHRL, his breach of contract claims under New York law, and his hybrid claim
under the LMRA.
1.

Retaliation Claims

“Retaliation clams under . . . [Section] 1981 are . . . analyzed pursuant to Title VII
principles and the McDonnell Douglas burden-shifting evidentiary framework.” Littlejohn v.
City of New York, 795 F.3d 297, 315 (2d Cir. 2015) (footnote omitted). To establish a prima
facie case of retaliation, a plaintiff must demonstrate that (1) he engaged in protected activity; (2)
the employer was aware of that activity; (3) the employee suffered a materially adverse action;
and (4) there was a causal connection between the protected activity and that adverse action. Id.
at 315–16. If the plaintiff satisfies this burden, the defendant must articulate a legitimate, nondiscriminatory reason for the alleged retaliatory action. Joseph v. Marco Polo Network, Inc., No.
09 Civ. 1597, 2010 WL 4513298, at *16 (S.D.N.Y. Nov. 10, 2010). Once the defendant

4

1199 also moves for summary judgment on the basis that its settlement of the class
grievance, failure to specifically notify Sabater about the stipulation, and failure to find Sabater a
new job also did not breach its duty of fair representation. In his opposition, Sabater does not
advance any of these theories, nor does he dispute the notion that these would not constitute a
breach of 1199’s duty of fair representation. (See Dkt. No. 60.) Accordingly, these arguments
are deemed abandoned. See Spaulding v. N.Y.C. Dep’t of Educ., No. 12 Civ. 3041, 2015 WL
5560286, at *12 (E.D.N.Y. Sept. 21, 2015).

9

articulates such a reason, the burden shifts back to the plaintiff to demonstrate that the reasons
articulated are a pretext for retaliation. Id.
Retaliation claims brought under the NYCHRL are subject to a lower standard. To
prevail on a retaliation claim under the NYCHRL, a plaintiff must show (1) that he took an
action opposing her employer’s discrimination, and (2) that, as a result, the employer engaged in
conduct that was reasonably likely to deter a person from engaging in such action. EEOC v.
Bloomberg L.P., 967 F. Supp. 2d 816, 838 (S.D.N.Y. 2013) (quoting Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 112 (2d Cir. 2013)). “A defendant is not liable if the
plaintiff fails to prove the conduct is caused at least in part by discriminatory or retaliatory
motives.” Mihalik, 715 F.3d at 113 (citing Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 39–
40 & n.27 (App. Div. 1st Dep’t 2009)).
First, Montefiore argues that to the extent Sabater was reassigned from his position on the
posting team to the scanning room team, 5 that reassignment did not constitute an adverse
employment action. (See Dkt. No. 50 at 4–5.) Montefiore points out that Sabater testified that
the job in the scanning room was “easier,” and his hours and pay did not change. (See Dkt. No.
57-1 at 252:7–14, 256:25–257:5.) While Sabater describes the role as a “demotion” in his
opposition, he cites no evidence to support that characterization. (See Dkt. No. 64 at 16–19.)

5

As an initial matter, there is a factual dispute as to whether this transfer occurred in the
first instance. (See Montefiore CSOF ¶ 36.) For the purposes of this motion for summary
judgment, the Court will assume arguendo that it occurred. Second, Montefiore argues that there
is no evidence that Monard, the supervisor who allegedly transferred Sabater to the scanning
room team, knew that Sabater had made a complaint. (Dkt. No. 50 at 4.) However, that is
irrelevant. It is enough that Montefiore knew that Sabater had made a complaint for the purposes
of the knowledge requirement. See Alston v. N.Y.C. Transit Auth., 14 F. Supp. 2d 308, 311
(S.D.N.Y. 1998) (citing Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996))
(“[P]laintiff need not show that individual decision-makers . . . knew that she had filed EEO and
EEOC complaints.”)

10

And a simple job transfer, without more, does not constitute an adverse employment action under
either Section 1981 or the NYCHRL. See, e.g., Sollazzo v. Just Salad Rest., No. 15 Civ. 252,
2018 WL 1273661, at *8 (S.D.N.Y. Mar 5, 2018). Because Sabater has presented no evidence in
the record that this transfer was materially adverse, Montefiore’s motion for summary judgment
on this ground is granted.
Second, Montefiore argues that any allegation that Monard threatened Sabater and his
mother’s jobs also do not constitute an adverse employment action. It is true that threats, without
more, do not constitute adverse employment action. See Tepperwien v. Entergy Nuclear
Operations, No. 07 Civ. 433, 2010 WL 8938797, at *6 (S.D.N.Y. Mar. 16, 2010). And because
Sabater does not address this argument in his opposition to Montefiore’s motion for summary
judgment, it is considered abandoned. See Spaulding, 2015 WL 5560286, at *12. Accordingly,
Montefiore’s motion for summary judgment on this ground is granted.
Third, Montefiore argues that Sabater has not adequately shown the causal connection
between his complaints and his termination. Montefiore argues that Sabater was terminated as a
result of a Stipulation of Settlement entered into with 1199 after an arbitration concerning the
employment of per diem, temporary, and agency workers beyond the time limit provided by the
Collective Bargaining Agreement (“CBA”). (See Montefiore SOF ¶¶ 71, 81.) While efforts
were made to place Sabater into a permanent position, there was a hiring freeze preventing any
transfers. (See Montefiore SOF ¶¶ 75–80.) Because Sabater could not be transferred into a
permanent position by January 1, 2017, by the terms of the Stipulation of Settlement, he had to
be terminated. (Montefiore SOF ¶ 81.) In response, Sabater argues that his classification as a
temporary employee must have been pretexual, because everyone in his department had the
understanding that he was a permanent employee since at least 2013. (See Dkt. No. 66-4 at

11

42:7–18, 58:15–59:2). Sabater also asserts that any system error showing that he was a
temporary employee rather than a permanent employee was fixed by 2015. (See Dkt. No. 66-8 at
3.)
However, Montefiore rightly points out that while this argument supports the notion that
Sabater should have been coded as a permanent employee, the undisputed fact remains that he
was coded as a temporary employee and was terminated as a result. (See Dkt. No. 68 at 5; see
also Montefiore CSOF ¶¶ 74–81.) Even if Sabater was correctly coded as a permanent employee
in 2015, it does not follow that he was not incorrectly coded as a temporary employee on January
1, 2017. Montefiore has provided evidence that he was indeed coded as a temporary employee at
the time of his termination. (See Dkt. No. 54-1 at 2; Dkt. No. 69-2.) And Sabater has not
pointed to any evidence suggesting that he was not actually coded, even if erroneously, as a
temporary employee on the date of his termination on January 1, 2017.
Even assuming Plaintiff is correct that he was coded as permanent in 2015, the fact that
sometime between April 1, 2015, and January 1, 2017, Sabater was erroneously re-coded as a
temporary employee is not enough to show that his termination was “caused at least in part by
discriminatory or retaliatory motives.” See Mihalik, 715 F.3d at 113. Because Sabater has failed
to point to any evidence that either his placement on the temporary employee list or his
subsequent termination was driven even in part by retaliatory motives, Montefiore’s motion for
summary judgment on this ground is granted.
Accordingly, all of Sabater’s Section 1981 and NYCHRL retaliation claims are
dismissed.
2.

Breach of Contract Claim

Montefiore also moves for summary judgment on Sabater’s state-law breach of contract
claims. “To state a breach of contract claim under New York law, a plaintiff must allege: (1) a
12

valid contract, (2) plaintiff’s performance, (3) defendant’s failure to perform, and (4) damages
resulting from the breach.” MeehanCombs Glob. Credit Opportunities Funds, LP v. Caesar’s
Entm’t Corp., 80 F. Supp. 3d 507, 514 (S.D.N.Y. 2015) (citing Diesel Props S.r.l. v. Greystone
Bus. Credit II LLC, 631 F.3d 42, 52 (2d Cir. 2011)). Montefiore argues that Sabater has failed to
produce any evidence of a contract or an employment agreement. Indeed, in his opposition
Sabater only discusses a breach of the CBA rather than a private employment contract. (See Dkt.
No. 64 at 22–23.) And Sabater has admitted that Montefiore does not have employment
contracts with employees represented by 1199. (See Montefiore CSOF ¶ 15.)
Because Sabater seems to be claiming a breach of the CBA rather than an independent
employment contract, that claim is preempted by the LMRA and any state-law claims must be
dismissed. See Arnold v. Beth Abraham Health Servs., Inc., No. 09 Civ. 6049, 2009 WL
5171736, at *5 (S.D.N.Y. Dec. 30, 2009). Accordingly, Montefiore’s motion for summary
judgment is granted on this ground, and Sabater’s state-law breach of contract claim is
dismissed.
3.

LMRA § 301 Claim

Montefiore also moves for summary judgment on Sabater’s hybrid claim under LMRA
§ 301. As previously discussed, to bring a hybrid LMRA § 301 claim, “[an] employee must
allege both (1) that the employer breached a collective bargaining agreement and (2) that the
union breached its duty of fair representation in redressing her grievance against the employer.”
Doyle, 914 F. Supp. 2d at 338 (internal quotation marks and citation omitted). “Failure to
establish that the union breached its duty of fair representation necessarily precludes the claim
against the employer.” Pinkney v. Progressive Home Health Servs., 367 F. App’x 210 (2d Cir.
2010) (citing Young v. U.S. Postal Serv., 907 F.2d 305, 307 (2d Cir. 1990)). For the reasons
discussed in Section III.A above, Sabater has failed to show that 1199 breached its duty of fair
13

representation. Accordingly, Montefiore is granted summary judgment on this ground and
Sabater’s LMRA § 301 claim is dismissed.
IV.

Conclusion
For the foregoing reasons, Defendant 1199SEIU United Healthcare Workers East’s

motion for summary judgment is GRANTED. Defendant Montefiore Medical Center’s motion
for partial summary judgment is GRANTED.
Counsel for Plaintiff and Defendant Montefiore Medical Center shall appear for a
telephonic status conference in the case on May 6, 2020, at 11:00 a.m. At the appointed time,
counsel shall call [phone], and use the access code 9300838.
The Clerk of Court is directed to close the motions at Docket Numbers 43 and 49, and to
terminate Defendant 1199SEIU United Healthcare Workers East (incorrectly called Local Union
1199, SEIU) as a party to this case.
SO ORDERED.
Dated: April 6, 2020
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

14