In determining whether an environment is sufficiently hostile or abusive to support a Title VII claim, courts examine the totality of the plaintiff's circumstances, including "(1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a 'mere offensive utterance;' (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted." Richardson, 180 F.3d at 437 (citing Harris, 510 U.S. at 23, 114 S.Ct. 367); see also Faragher, 118 S.Ct. at 2283; Leopold v. Baccarat, Inc., 174 F.3d 261, 269 (2d Cir. 1999); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 767-68 (2d Cir. 1998); Badlam v. Reynolds Metals Co., 46 F. Supp.2d 187, 194 (N.D.N.Y. 1999). Consistent with the approach adopted by the Second Circuit, this non-exclusive list of factors "must be considered 'cumulatively,' so that [the Court] may 'obtain a realistic view of [Plaintiff's] work environment.'"
; cf. York, 95 F.3d at 956 (adopting acquiescence theory but noting “mere inaction does not constitute acquiescence” and requiring “(1) knowledge that prohibited discrimination may have occurred and (2) a decision not to assert the discrimination claim”); Douglass v. United Auto Workers, Loc. 31, 368 F.Supp.2d 1234, 1247 (D. Kan. 2005), aff'd sub nom. Douglass v. United Auto Workers Loc. Union 31, 188 Fed.Appx. 656 (10th Cir. 2006) (holding that the plaintiff failed in her burden to provide specific facts showing that a genuine issue for trial existed when she never attempted to file any grievance with regard to her job placements); Badlam v. Reynolds Metals Co., 46 F.Supp.2d 187, 201 (N.D.N.Y. 1999) (finding that the union was under no obligation to take further action because the plaintiff did not pursue a grievance regarding her sex discrimination accusations); Ellison v. Plumbers & Steam Fitters Union Loc. 375, 118 P.3d 1070, 1076 (Alaska 2005) (ruling that female union member who never requested to file a grievance failed to show the union discriminated against her through its inaction in the face of knowledge of discrimination by her employer and some union stewards). Contra Howard v. Int'l Molders & Allied Workers Union, 779 F.2d 1546, 1548, 1553 (11th Cir. 1986) (holding union liable for failing to use “all reasonable effort” to end employer's use of racially discriminatory test for promotion, although no members had asked union to pursue grievances). Thus, even though an employer may be liable for the failure to remediate discrimination, courts have not impos
“Acquiescence requires (1) knowledge that prohibited discrimination may have occurred and (2) a decision not to assert the discrimination claim.” Badlam v. Reynolds Metals Co., 46 F.Supp.2d 187, 200 (N.D.N.Y. 1999) (internal citations omitted). Although Badlam was a Title VII case, it is still instructive on how this Court approaches an ADEA or ADA case.
To prevail on this claim, Plaintiff must show that: (1) Defendant breached its duty of fair representation by allowing an alleged breach of the Collective Bargaining Agreement to stand uncorrected; and (2) Defendant's actions were motivated by animus toward a protected group. Badlam v. Reynolds Metals Co., 46 F. Supp.2d 187, 199 (N.D.N.Y. 1999) (citations omitted). Further, a plaintiff need not show that the harassment involved sexual advances or other explicitly sexual conduct.
To prevail on this claim, Plaintiff must show that: (1) Defendant breached its duty of fair representation by allowing an alleged breach of the Collective Bargaining Agreement to stand uncorrected; and (2) Defendant's actions were motivated by animus toward a protected group. Badlam v. ReynoldsMetals Co., 46 F. Supp.2d 187, 199 (N.D.N.Y. 1999) (citations omitted). Further, a plaintiff need not show that the harassment involved sexual advances or other explicitly sexual conduct.
Lawyering is to be done by lawyers, not the Court.” Prestopnik v. Whelan, 253 F.Supp.2d 369. 371-72 (N.D.N.Y) (quoting Badlam v. Reynolds Metals, Co., 46 F.Supp.2d 187, 193 n.2 (N.D.N.Y. 1999)); Jackson v. Onondaga Cnty, 549 F.Supp.2d 204, 209 (N.D.N.Y. 2008) (finding “[w]here a non-movant fails to adequately oppose a properly supported factual assertion made in a motion for summary judgment, a district court has no duty to perform an independent review of the record to find proof of a factual dispute”); Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (“Fed.R.Civ.P. 56 does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute.”)
If plaintiff “did not ask the Union to process a grievance on this issue, [he] cannot complain that the Union failed to represent [him] properly.” Flanigan v. (Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am.) Truck Drivers Loc. No. 671, 942 F.2d 824, 829 (2d Cir. 1991); accord Goodman v. Port Auth. of New York & New Jersey, 2011 WL 3423800, at *5 (S.D.N.Y. Aug. 4, 2011); Badlam v. Reynolds Metals Co., 46 F.Supp.2d 187, 201 (N.D.N.Y. 1999). In short, no reasonable factfinder could conclude that the union's decision to threaten- but not pursue-punitive sanctions against USPS was arbitrary or made in bad faith, and therefore NALC's failure to pursue this remedy cannot sustain plaintiff's claim against the union.
The plaintiff's claim that the defendant LIUNA breached its duty of fair representation because it did not file a grievance on her behalf fails because she did not request that it do so. See Flanigan v. Int'l Bhd. Of Teamsters, Local No. 671, 942 F.2d 824, 829 (2d Cir. 1991) ("Because appellants did not ask the Union to process a grievance on this issue, they cannot complain that the Union failed to represent them properly."); Goodman v. Port Auth. of New York & New Jersey, No. 10 CIV. 8352, 2011 WL 3423800, at *7 (S.D.N.Y. Aug. 4, 2011) ("before an employee can bring a claim based on a union's failure to represent him properly, he first must ask the union to process a grievance. . . . Because Plaintiff failed to allege that he filed grievances or otherwise asked the Union to take action with respect to any issue except his termination, his duty of fair representation claims fail . . . ."); Badlam v. Reynolds Metals Co., 46 F. Supp. 2d 187, 203 (N.D.N.Y. 1999) ("Because [Badlam] did not ask the Union to process a grievance on this issue, [she] cannot complain that the Union failed to represent [her] properly.") Moreover, there is no record evidence from which the court can infer that the union acted with discriminatory animus.
Plaintiff also has raised a genuine dispute as to whether she subjectively perceived her work environment to be hostile. Plaintiff's testimony reveals that she was offended by the derogatory remarks about Hispanics, Delgado Dep. at 86-87, ECF No. 57-1, was disgusted and made uncomfortable by the crude sexual comments, Delgado Aff. ¶ 44, 109, and was made uncomfortable by Sgt. Guzda's allegedly unzipping his pants and tucking in his shirt in front of her, Delgado Dep. at 143, ECF No. 57-6. See Schwapp, 118 F.3d at 112 (whether plaintiff perceived hostile work environment was a "factual issue that should be resolved by a trier of fact"); e.g., Badlam v. Reynolds Metals Co., 46 F. Supp. 2d 187, 196 (N.D.N.Y. 1999) (plaintiffs raised genuine dispute as to perceiving hostile work environment where evidence showed that they were personally offended by crude sexual remarks); Dyke v. McCleave, 79 F. Supp. 2d 98, 105 (N.D.N.Y. 2000) (same). 3. Because of Plaintiff's Sex and/or National Origin
Moreover, there is no evidence that this act occurred alongside any other sexually hostile acts or as part of a continuous pattern of behavior. Cf. Badlam v. Reynolds Metals Co., 46 F. Supp. 2d 187, 191 (N.D.N.Y. 1999) (denying summary judgment where plaintiff asserted that, inter alia, she was constantly referred to as an "old cunt," "slut," "whore," "bitch," "dyke," and "prostitute;" certain male workers tried to have her grab their penises; and coworkers exposed themselves to her). Thus, as pled, the "Is" incident is not sufficiently continuous or concerted to be deemed pervasive.