352 F.Supp.2d 216 (2005) | Cited 5 times | D. Connecticut | January 13, 2005


Hope Kasper and Helen Kerkes brought this action against theCity of Middletown ("Middletown"), Debra Moore ("Moore"), andLocal 466, Council 4, of the American Federation of State, Countyand Municipal Employees, AFL-CIO ("Local 466" or "Union"),alleging violations of Title VII of the Civil Rights Act,42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1983; the FourteenthAmendment to the United States Constitution; and the Connecticutcommon law tort of intentional infliction of emotional distress.Count One alleges that Middletown discriminated against theplaintiffs on the basis of their sex, and Count Two alleges thatLocal 466 discriminated against the plaintiffs on the same basis.Count Three alleges that Middletown and Local 466 engaged inconcerted action to deprive the plaintiffs of equal protection ofthe laws in violation of the Fourteenth Amendment and42 U.S.C. § 1983.1 Count Four alleges that defendants Middletown andLocal 466 jointly committed the state law tort of intentionalinfliction of emotional distress.2 Middletown has filed a Motion to Dismiss or in the Alternativefor Summary Judgment. Local 466 has filed a Motion to Dismiss orfor Summary Judgment.

I. Factual Background3

A. Introduction

Kasper and Kerkes are long-time employees of Middletown, and atone time belonged to Local 466, which represents Middletownmunicipal employees and employees of the Middletown Board ofEducation.

Local 466 is considered a "wall-to-wall" bargaining unit, inthat it represents all Middletown municipal employees, regardlessof job classification. The union contains two general categoriesof employees: those employed in "white-collar" jobs, who arepredominantly female, and those employed in "blue-collar" jobs,who are predominantly male. Kasper and Kerkes (both white-collaremployees) allege that the distinction between white- andblue-collar workers is based on sex rather than jobclassification, and that Local 466 and Middletown conspired totreat the white-collar portion of the union less favorablybecause those workers were predominantly women. Kasper and Kerkesclaim that the defendants' discriminatory conduct came to a headas Local 466's collective bargaining agreement was set to expirein June 1999.

B. Chronology

In January 1999, both plaintiffs ran for office in Local 466.Kasper sought election as the union's president, while Kerkes ranfor election as First Vice President.4 The union electionwas held on January 21, 1999. Kasper and Kerkes both lost theirraces. They then (along with one of the losing blue-collardivisional vice president candidates) formally protested theelection results to a judicial panel of Local 466's parent union,the American Federation of State, County, and Municipal Employees("AFSCME"). Kasper's and Kerkes' principal complaint was thatelection officials improperly had counted absentee ballots in thefinal total, when such ballots are prohibited by AFSCMErules.5 If only walk-in votes had been counted, Kasperand Kerkes both would have won their respective races. On April22, 1999, the AFSCME judicial panel ruled that although absenteeballots indeed were prohibited, the confusion within Local 466 onthis item meant that discounting the absentee ballots cast woulddisenfranchise some union members.6 AFSCME ordered a newelection to be held within forty days of its ruling.7

At the same time that they were protesting the Local 466election results, Kasper and Kerkes assisted the ConnecticutIndependent Labor Union ("CILU") in soliciting support fromwhite-collar union members to force a different election, thistime on the issue of whether there should be an independentwhite-collar bargaining unit. CILU filed a petition with the Connecticut State Board of Labor Relations ("SBLR") on January28, 1999, seeking to "carve out" the white-collar employees fromLocal 466 and represent them as an independent union. An electionon the proposed carve-out was held on May 13, 1999. White-collarworkers had the choice of four options: 1) to electrepresentation by CILU; 2) to elect continued representation byLocal 466; 3) to elect representation by an AFSCME bargainingunit distinct from Local 466; or 4) to have no unionrepresentation at all. The white-collar workers voted to form aseparate union affiliated with CILU.8 Because thepro-CILU vote would create a new union in the state, the proposedchange had to be ratified by the Connecticut State Board of LaborRelations. On April 13, 2000, the State Board of Labor Relationsdenied CILU's request to carve out the whitecollar employees intotheir own unit (notwithstanding the election results), rulingthat the whitecollar employees did not possess sufficientlyunique job characteristics to warrant a separate union. Thecarve-out election results were dismissed, and the white-collaremployees remained members of Local 466.

While these various proceedings were pending, Local 466 wasoperating under a collective bargaining agreement that expiredJune 30, 1999. As Local 466 and Middletown sought to beginnegotiating a successor agreement, the SBLR was still consideringthe whitecollar employees' carve-out request. On August 5, 1999,Local 466 and Middletown entered into an agreement to negotiatefor a new blue-collar contract, and included a clause that shouldthe SBLR deny the carve-out, the scope of negotiations wouldexpand to cover all issues pertaining to white-collar workers.9 Based in part upon that signedagreement, Middletown and Local 466 entered into a new contracton April 6, 2000. The blue-collar workers enjoyed the highersalaries and benefits of the new contract immediately. As thecontract was retroactive to June 30, 1999, blue-collar workersalso received an additional payout to make them whole as of thatdate.

Approximately a week later, the State Board of Labor Relationsissued its decision denying a separate bargaining unit to thewhite-collar employees. An extension of Local 466's newcollective bargaining agreement, also applying its terms towhite-collar workers, then was signed on October 25, 2000. Atthat point, the white-collar workers began to receive the samesalary and benefit increases as the blue-collar workers;white-collar employees also received supplementary compensationto make them whole for the retroactive period of June 30, 1999until October 25, 2000. The extension of the collectivebargaining agreement to white-collar workers made no otherchanges to the original contract, apart from a few amendmentsrelating to the work schedules of communicationdispatchers.10

Kasper and Kerkes allege that due to their involvement in theseevents, they suffered various acts of discrimination. On August24, 2000, Kasper filed a complaint with the ConnecticutCommission on Human Rights and Opportunities ("CHRO") againstMiddletown and Local 466 alleging gender discrimination,retaliation and harassment. Kerkes filed a virtually identical complaint with the CHRO on August 28, 2000.

II. Discussion

A. Legal Standard

Under Rule 12(b) of the Federal Rules of Civil Procedure,"[i]f, on a motion . . . to dismiss for failure of the pleadingto state a claim upon which relief can be granted, mattersoutside the pleading are presented to and not excluded by thecourt, the motion shall be treated as one for summaryjudgment. . . ." Defendants Middletown and Local 466 each filedtheir pending motions as motions to dismiss or, in thealternative, as motions for summary judgment. As part of thosemotions, each defendant also filed a Rule 56 statement. Theplaintiffs responded to defendants' motions by submitting theirown Rule 56 statement. As all these statements concern detailsoutside the pleadings, their consideration by the Court requiresthat the pending motions be deemed motions for summary judgmentpursuant to Rule 56 of the Federal Rules of CivilProcedure.11 See Dacourt Group, Inc. v. BabcockIndus., Inc., 747 F. Supp. 157, 159-60 (D. Conn. 1990).

In the context of a motion for summary judgment, the burden ison the moving party to establish that there are no genuine issuesof material fact in dispute and that the moving party is entitledto judgment as a matter of law. See Fed.R.Civ.P. 56(c);Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Acourt must grant summary judgment "if the pleadings, depositions,answers to interrogatories, and admissions on file, together withaffidavits, if any, show that there is no genuine issue as to anymaterial fact." Miner v. City of Glens Falls, 999 F.2d 655, 661(2d Cir. 1993) (internal quotation marks and citation omitted).In ruling on a motion for summary judgment, however, the Court resolves "allambiguities and draw[s] all inferences in favor of the nonmovingparty in order to determine how a reasonable jury would decide."Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2dCir. 1992). Thus, "[o]nly when reasonable minds could not differas to the import of the evidence is summary judgment proper."Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991), cert.denied, 502 U.S. 849 (1991); see also Suburban Propane v.Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir. 1992).

B. Plaintiffs' Title VII Claims Against Middletown (CountOne)

1. Discrete Employment Actions

Kasper and Kerkes allege that as white-collar employees, theywere required to work under the terms and conditions of a lessfavorable collective bargaining agreement than that coveringblue-collar employees. The substance of their claim appears to bethat Middletown and Local 466 discriminated against them on thebasis of sex by signing a new collective bargaining agreementwhose terms applied only to blue-collar workers, by not waitingto negotiate with the entire union until the "carve-out" electionhad been ruled upon, or by not negotiating with the white-collarworkers while the "carve-out" issue was being resolved. Pendingresolution of the carve-out election, the new contract's termsapplied only to blue-collar workers, meaning that employees inthose job categories earned higher salaries than white-collarmembers of the same union for a period of severalmonths.12 Second, Kasper and Kerkes allege thatMiddletown and Local 466 conspired to prevent the plaintiffs frombeing elected to a union office. Finally, Kasper alleges that onJune 8, 2000, Middletown attempted to remove her as the onlyfemale member of the committee managing city employees' retirementbenefits and to replace her with a male employee. DefendantMiddletown alleges that it is entitled to summary judgment on thefirst two of these claims, those relating to the blue-collaremployees' contract and the Local 466 leadership election,because Kasper and Kerkes are time-barred from bringing an actionon those grounds.

Generally, discrimination claims under Title VII must be filedwith the EEOC within 180 days of the date on which the "allegedunlawful employment practice occurred."42 U.S.C. § 2000e-5(e)(1). When, however, one has filed a charge ofdiscrimination in a state or locality that has its ownantidiscrimination laws and enforcement agency, the time periodfor filing claims with the EEOC is extended to 300 days from thedate of the unlawful practice. 42 U.S.C. § 2000e-5(e)(1); Fordv. Bernard Fineson Dev. Ctr., 81 F.3d 304, 307 (2d Cir. 1996).Connecticut has its own anti-discrimination agency, the CHRO,with which both Kasper and Kerkes filed charges. Thus, the300-day limit applies.13 The 300-day requirement alsofunctions as a statute of limitations, so that "discriminatoryincidents not timely charged before the EEOC will be time-barredupon the plaintiff's suit in district court." Quinn v. GreenTree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). BecauseKasper filed her complaint with the CHRO on August 24, 2000, sheis precluded here from bringing any claims that occurred beforeOctober 28, 1999 (300 days prior to the date of her CHRO filing).Kerkes filed her complaint with the CHRO on August 28, 2000, soshe is precluded from bringing any claims that occurred beforeNovember 1, 1999. The plaintiffs provided no dates in their complaint as to whenthe allegedly discriminatory election took place. In their Rule56 statement of facts, however, they agreed with defendants thatthe election took place in January 1999. As plaintiffs aretime-barred from bringing claims occurring before October 28,1999, this event falls outside the applicable statute oflimitations. Therefore, summary judgment is granted for defendantMiddletown as to all allegations based on the Local 466leadership election.14

The parties do contest when the allegedly discriminatorycontract is alleged to have taken effect. Middletown argues thatthe effective date of the collective bargaining agreement shouldbe August 5, 1999, the date that it and Local 466 signed amemorandum of understanding to begin negotiations.15 Incontrast, plaintiffs alleged in their complaint in this Courtthat Middletown and Local 466 entered into the discriminatorycontract "on or about" March 2000.16

In support of its position, Middletown submitted as part of itssummary judgment papers copies of the CHRO's correspondence withplaintiffs. The CHRO, after investigating plaintiffs' complaintsto that agency, dismissed those complaints for lack of probablecause and untimeliness. The agency concluded that the effective date of theblue-collar contract was August 5, 1999, the date of the originalmemorandum of understanding. Plaintiffs responded to Middletown'ssubmission by filing a motion to strike those exhibits, on theground that the agency records constitute inadmissible hearsay.See Docs. # 54, 55. The Court denied the motion to strike in anOrder dated September 30, 2004, noting that plaintiffs'objections would be considered in ruling on the instant summaryjudgment motion. See Doc. # 69.

Plaintiffs also argued in their motion to strike that theunderlying record of a state administrative agency isinadmissible in a Title VII employment discrimination action,because Congress intended in passing Title VII to provide for ade novo trial on such claims. It is true that "unrevieweddecisions of state administrative agencies will not bar asubsequent de novo trial under Title VII in federal court."Kosakow v. New Rochelle Radiology Assocs., 274 F.3d 706, 728(2d Cir. 2001); see also Univ. of Tennessee v. Elliott,478 U.S. 788 (1986). The state agency record, however, is notentirely without evidentiary value. Title VII itself providesthat the EEOC accord "substantial weight" to final findings andorders by state employment discrimination agencies, and prioradministrative findings may be introduced as evidence at asubsequent federal trial. 42 U.S.C. § 2000e-5(b); see alsoAstoria Fed. Sav. & Loan v. Solimino, 501 U.S. 104, 113 (1991)(holding that even when state administrative findings lackpreclusive effect, they retain evidentiary value); Chandler v.Roudebush, 425 U.S. 840, 864 (1976) (holding that administrativefindings have evidentiary value to federal trial courts). Whilestate agencies' conclusions are not binding upon federal courts,federal courts certainly may consider secondary facts containedin a state agency's record, since that record itself is amandatory prerequisite to filing a Title VII claim. The Court holds that the CHRO correspondence to whichplaintiffs object does not constitute inadmissible hearsay, butrather should be deemed admissible under Federal Rule of Evidence803(8)(C). That rule provides a hearsay exception in civilactions for "factual findings resulting from an investigationmade pursuant to authority granted by law, unless the sources ofinformation or other circumstances indicate lack oftrustworthiness." The scope of factual findings encompassed byRule 803(8)(C) also includes "factually based conclusions oropinions." Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 162(1988). While Middletown's copies of these documents have notbeen attested or accompanied by an affidavit, Local Rule 56(3)only requires that statements of material fact offered in supportof summary judgment be accompanied by "evidence that would beadmissible at trial." Conn. L. Civ. R. 56(3). Because the Courtdetermines that there is nothing to suggest the untrustworthinessof the CHRO documents, and that the correspondence would beadmissible at trial pursuant to Fed.R. Evid. 803(8)(C), thedates contained in those documents will be considered materialfacts for the purposes of this summary judgment motion.

Nonetheless, even if the CHRO documents are admissible, therecord contains a potential dispute of material fact. Theagreement extending Local 466's new contract's benefits towhitecollar workers was not signed until October 25, 2000. Inaddition, that agreement states that the underlying contractitself was not signed until April 6, 2000. Both of these datesfall within plaintiffs' statute of limitations. The Supreme Courthas held that when an employee's cause of action "is whollydependent on the alleged illegality of signing the underlying[collective bargaining] agreement, it is the date of that signingwhich governs the limitations period." Lorance v. AT&T Tech.,490 U.S. 900, 911 (1989). In Lorance, three female AT&T employees challenged amodification to AT&T's seniority system, arguing that it was theproduct of a conspiracy to advantage a group of predominantlymale workers and to deter female AT&T employees from seekingpromotions to that job group. The Lorance plaintiffs' claimsonly accrued in 1983, when they were demoted under the modifiedseniority system. See id. at 902-03. The Supreme Court ruled,however, that the plaintiffs' true claim was that theircontractual rights had been discriminatorily altered when the oldseniority system was modified. That modification took effect byway of a collective bargaining agreement signed in 1979. Whilethe Lorance plaintiffs personally did not feel the effects ofthe alleged discrimination until 1983, that allegeddiscrimination occurred four years earlier upon the signing ofthe collective bargaining agreement. Therefore, the Loranceplaintiffs' claim was time-barred according to the timely filingprovisions of Title VII. See id. at 905-08. Applying Lorancesuggests that either of two dates might constitute theinstigating event here: August 5, 1999, when the defendantssigned a memorandum of understanding to negotiate only on behalfof the blue-collar employees, or April 6, 2000, when theblue-collar employees began to work under a new collectivebargaining agreement whose benefits were not extended towhite-collar employees for another seven months.

Even if plaintiffs' proffered date in April 2000 governs,however, the plaintiffs face an additional difficulty. When achallenged collective bargaining agreement is facially neutral,Title VII also requires that the plaintiff(s) make out a primafacie case of disparate impact to succeed.17 See, e.g., Griggs v. Duke Power Co., 401 U.S. 424, 430-32(1971); Brown v. Coach Stores, 163 F.3d 706, 712 (2d Cir.1998). The Second Circuit has ruled that such a prima facie caserequires a showing that a specific employment practice has causeda significant disparate impact on members of a protected group.See Brown, 163 F.3d at 712. "[A] plaintiff generally cannotrely on the overall decision-making process of the employer as aspecific employment practice." Smith v. Xerox Corp.,196 F.3d 358, 367 (2d Cir. 1999). Furthermore, allegations that "contendonly that there is a bottom line . . . imbalance in the workforce are insufficient." Brown, 163 F.3d at 712; see alsoLopez v. Metropolitan Life Ins. Co., 930 F.2d 157, 159 (2d Cir.1991). In their complaint, plaintiffs alleged that thewhite-collar/blue-collar distinction was based upon sex: Thereare approximately 37 female and 190 male blue-collar workers inLocal 466, and approximately 15 male and 131 female white-collaremployees. Plaintiffs also alleged that in one instance, a femalesnow plow operator was classified as a white-collar secretaryinstead of her true blue-collar designation. Plaintiffs'numerical data constitute "bottom line" numerical figures thatBrown has decreed are insufficient to make out a prima faciecase. Nor is the single alleged instance of a female employeebeing wrongly classified as a white-collar worker enough to showthat the Local 466 collective bargaining agreement had asignificant disparate impact on any protected group. Therefore, even assuming that plaintiffs' complaints about thecollective bargaining agreement are not time-barred, plaintiffshave failed to make a prima facie case upon which to rest adisparate impact claim. In addition, the plaintiffs have offeredno evidence at all with which to supplement their pleadings. Whenresponding to a summary judgment motion, the nonmoving party must"by [his or] her own affidavits, or by the `depositions, answersto interrogatories, and admissions on file,' designate `specificfacts showing that there is a genuine issue for trial.'" CelotexCorp. v. Catrett, 477 U.S. 317, 324 (1986) (quoting Fed.R. Civ.P. 56(e)). "[R]eliance upon conclusory statements or mereallegations is not sufficient to defeat a summary judgmentmotion." Davis v. New York, 316 F.3d 93, 100 (2d Cir. 2002)(citing Yin Jing Gan v. City of New York, 996 F.2d 522, 532-33(2d Cir. 1993)). If the nonmoving party provides "little or noevidence" supporting his allegations, "there is no genuine issueof material fact and summary judgment may be appropriate." Greyv. City of Norwalk Bd. of Educ., 2004 WL 231171, *3 (D. Conn.Feb. 4, 2004) (citing Gallo v. Prudential Residential Servs.,22 F.3d 1219, 1223-24 (2d Cir. 1994)). The Court concludes thatthe plaintiffs' claims relating to the collective bargainingagreement entered into by Middletown in 1999-2000, and thediffering dates of its coverage of white- and blue-collarworkers, fail as a matter of law.

Kasper's remaining timely allegation, that Middletown attemptedto remove her from the city retirement committee in June 2000,will be analyzed on its merits. Allegations of disparatetreatment are evaluated under the framework established byMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).Under the McDonnell Douglas rubric, the plaintiff bears theinitial burden of establishing a prima facie case ofdiscrimination. To do so, a claimant must show that: 1) shebelonged to a protected class; 2) she was qualified for theposition; 3) she suffered an adverse employment action; and 4) the adverse employment actionoccurred under circumstances giving rise to an inference ofdiscriminatory intent. See id.; see also Terry v.Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). If the plaintiffsatisfies these requirements, the burden then shifts to thedefendant to offer a legitimate, non-discriminatory rationale forits actions. McDonnell Douglas, 411 U.S. at 802. Once thedefendant demonstrates a non-discriminatory reason for itsdecision, the burden again shifts to the plaintiff, who now mustshow that the defendant's proffered reason is a mere pretext fordiscrimination. See Weinstock v. Columbia Univ., 224 F.3d 33,42 (2d Cir. 2000), cert. denied, 2003 WL 1988534 (Oct. 6,2003). To survive summary judgment, the plaintiff must "producenot simply `some' evidence, but `sufficient evidence to support arational finding that the legitimate, non-discriminatory reasonsproffered by the [defendant] were false, and that more likelythan not [discrimination] was the real reason for the [employmentaction].'" Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708,714 (2d Cir. 1996) (quoting Woroski v. Nashua Corp.,31 F.3d 105, 110 (2d Cir. 1994)).18

As to this remaining timely allegation, Kasper fails to make avalid prima facie case of discrimination under Title VII. She hasoffered no direct or indirect evidence that the attempted removalcaused her to suffer any adverse employment action, which theSecond Circuit has defined as a "materially adverse change in theterms and conditions of employment." Sanders v. N.Y. City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004).To qualify as "materially adverse," such an action must be "moredisruptive than a mere inconvenience or an alteration of jobresponsibilities." Terry v. Ashcroft, 336 F.3d 128, 138 (2dCir. 2003). Examples of sufficiently material adverse employmentactions include "termination of employment, a demotion evidencedby a decrease in wage or salary, a less distinguished title, amaterial loss of benefits, [or] significantly diminished materialresponsibilities. . . ." Id. Kasper has suffered none of theseadverse actions, nor anything comparable to the examples offered.Ultimately, Kasper was not even removed from the committee. Anallegation of attempted removal, without more, does not create acause of action under Title VII.

For the above reasons, summary judgment is granted fordefendant Middletown as to all plaintiffs' claims of discreteacts of sex discrimination by Middletown.

2. Hostile Work Environment

While plaintiffs have charged Middletown for discriminatingagainst them on the basis of sex in violation of Title VII, theyhave not stated specifically under which theory of employmentdiscrimination they bring this action. Title VII prohibitsdiscrete acts of disparate treatment, as discussed supra, butalso proscribes hostile work environment sexual harassment. Ascertain of plaintiffs' allegations potentially support a hostilework environment claim, the Court evaluates their allegationsunder this latter theory in the interest of completeness.

In order to prevail on a claim of hostile work environment, aplaintiff must show "(1) that the harassment was `sufficientlysevere or pervasive to alter the conditions of the victim'semployment and create an abusive working environment,' and (2)that a specific basis exists for imputing the objectionableconduct to the employer." Alfano v. Costello, 294 F.3d 365, 373(2d Cir. 2002) (quoting Perry v. Ethan Allen, Inc., 115 F.3d 143,149 (2d Cir. 1997)). Because hostile environment claims "aredifferent in kind from discrete acts" and by "their very nature[involve] repeated conduct," a different statute of limitationsapplies. Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,115 (2002). Unlike discrete acts, for which charges of eachviolation must be filed with a state or federal agency within therequisite 180 or 300 days to be timely, "the entire time periodof the hostile environment may be considered by a court" as longas the employee has filed a timely charge as to "any act thatis part of the hostile work environment." Id. at 117-18(emphasis added).

Kasper filed a timely charge with the CHRO as to her attemptedremoval from the retirement committee in June 2000. Under therubric established by Morgan, Kasper's one timely charge allowsthe Court to consider the entire time period of any hostile workenvironment. Accordingly, the Court will consider all of Kasper'sallegations against Middletown — that white collar employees wereforced to work under a less advantageous contract; thatMiddletown conspired with Local 466 to prevent her from beingelected to a union office; that upon being informed that Kasperhad been verbally harassed by Local 466 officials, the MiddletownHuman Resources Department failed to respond; and that Middletownattempted to remove her from the city employees' retirementcommittee — in determining whether Kasper suffered from a hostilework environment.

An actionable hostile work environment is one "permeated with`discriminatory intimidation, ridicule, and insult,' [and] thatis `sufficiently severe or pervasive to alter the conditions ofthe victim's employment. . . .'" Harris v. Forklift Sys., Inc.,510 U.S. 17, 21 (1993) (quoting Meritor Savings Bank v. Vinson,477 U.S. 57, 65, 67 (1986)). Conduct that does not meet the "severe or pervasive" standard is redressable throughTitle VII. See id. While analysis is based on the totality ofthe circumstances on a case-by-case basis, a plaintiff seeking toestablish a hostile work environment generally "must demonstratethat a single incident was extraordinarily severe, or that aseries of incidents were sufficiently continuous and concerted"to constitute pervasiveness. Cruz v. Coach Stores, Inc.,202 F.3d 560, 570 (2d Cir. 2000).

The Court holds that Kasper has not alleged conduct that iseither sufficiently severe or pervasive to establish a hostilework environment. Kasper has not alleged a continuous, concertedcourse of action that pervasively worsened her work environment,nor has she alleged any single incident so intimidating orabusive that it altered the conditions of her employment. Kasperdoes allege that she was subjected to repeated verbal harassment:She claims that a Local 466 official repeatedly called her "babe"and responded to her complaints about male union management byasking, "What do you want us to do, buy pantyhose?"19While no doubt upsetting to Kasper, these comments do notdemonstrate that her workplace "was so severely permeated withdiscriminatory intimidation, ridicule, and insult that the termsand conditions of her employment were thereby altered." Alfanov. Costello, 294 F.3d 365, 373 (2d Cir. 2002).

Kasper makes three remaining allegations: that Middletownconspired with Local 466 to prevent her from being elected tounion office in January 1999; that when she was verbally harassed by a union official, she complained to the MiddletownHuman Resources Department, which failed to respond; and thatMiddletown attempted to remove her from the city employees'retirement committee in June 2000.20 These incidents aretoo few in number and too distant from one another in time to beconsidered a sufficiently continuous and concerted series ofevents for hostile work environment liability.21 SeeAlfano, 294 F.3d at 379-80. Any hostile work environment claimby Kasper fails as a matter of law.

Kerkes' allegations are identical to Kasper's, with theexception that Kerkes makes no claims that she was the subject ofindividual harassment or insult. If Kasper's claim of a hostilework environment fails as a matter of law, a fortiori so mustKerkes'. Therefore, the Court grants summary judgment fordefendant Middletown on Count One, as to all claims of hostilework environment alleged by both plaintiffs.

C. Plaintiffs' Title VII Claims Against Local 466 (Count Two)

1. Discrete Employment Actions

Kasper and Kerkes allege six instances of discrimination byLocal 466: that Local 466 and Middletown entered into a moreadvantageous collective bargaining agreement, the terms of whichapplied only to designated blue-collar employees; that Local 466conspired with Middletown to prevent the plaintiffs from being elected as unionofficers; that after the discriminatory election, Local 466appointed an all-male negotiating committee, whose membersrefused to address the concerns of white-collar employees; thatupon Kasper complaining about the election process, a Local 466official began to verbally harass her; that Local 466 retaliatedagainst the plaintiffs by attempting to expel them from theunion; and that Local 466 attempted to remove Kasper as a memberof the committee overseeing the Middletown city employees'retirement system. Although Local 466 is neither Kasper's norKerkes' employer, Title VII also prohibits labor organizationsfrom discriminating against individuals on the ground of sex.See 42 U.S.C. § 2000e-2(c).

Defendant Local 466 has moved for summary judgment on theseclaims on the ground that plaintiffs failed to file timelyadministrative charges as required by Title VII. As discussedpreviously, based upon the dates that Kasper and Kerkes filedcharges with the CHRO, they are time-barred here from bringingclaims based on events that occurred before October 28, 1999 andNovember 1, 1999, respectively. The parties agree that the unionelection at issue occurred in January 1999. Therefore,plaintiffs' second allegation that the election was conducted ina discriminatory fashion is time-barred under Title VII.Plaintiffs' third allegation, that Local 466 appointed anall-male negotiating committee immediately after the election,also is time-barred. The remaining allegations will be analyzedon their merits.

The first of Kasper's and Kerkes' allegations is that Local466's collective bargaining process and resulting contracts weremore advantageous to blue-collar employees, since that group ofemployees received the contract's higher benefits for a period ofseven months before the contract was extended to white-collar workers.22 Theplaintiffs, however, neither have shown that they suffered anadverse employment action due to the implementation of thecontract, nor have they made a prima facie case that any practicecontained in the collective bargaining agreement caused adisparate impact upon women in the union.23 Any claimsbased on this allegation fail as a matter of law.

Kasper's fourth allegation against Local 466 is that a unionofficial began to harass her after she complained aboutfavoritism shown to blue-collar employees. Because Kasper has notshown that she suffered any adverse employment action as a resultof the claimed harassment, she fails to make a prima facie caseof discrimination as to this allegation.

Finally, Kasper and Kerkes allege that Local 466 retaliatedagainst them by attempting to expel them from the union, and thatLocal 466 attempted to remove Kasper as a member of the committeemanaging the Middletown city employees' retirement system. Asdiscussed previously, allegations of attempted removal, withoutmore, do not constitute evidence of an adverse employment action.The plaintiffs must show they suffered a "materially adverse change in the terms and conditions of employment." Sanders v.N.Y. City Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004).Because they have not done so, plaintiffs have failed to make aprima facie case of discrimination on these claims.24

For the above reasons, the Court grants summary judgment fordefendant Local 466 as to all claims of discrete acts ofdiscrimination alleged by plaintiffs.

2. Hostile Work Environment

While Title VII prohibits labor organizations fromdiscriminating against their members, it does not imposeliability on a labor organization if one of its membersexperiences a hostile work environment. The hostile work environment theory grows outof 42 U.S.C. § 2000e-2(a)(1)'s language that employers may notdiscriminate in regard to any of the "terms, conditions, orprivileges" of employment. See Nat'l R.R. Passenger Corp. v.Morgan, 536 U.S. 101, 116 (2002). There is no such parallellanguage in the provisions of Title VII applicable to labororganizations.25 Because hostile work environmentliability is limited to employers, any claims by plaintiffsagainst Local 466 under this theory fail as a matter of law. Forthe above reasons, summary judgment is granted for defendantLocal 466 as to any claims of hostile work environment alleged byplaintiffs.

D. Plaintiffs' Section 1983 Claims Against Defendants (CountThree)

In the third count of their complaint, plaintiffs allege thatMiddletown and Local 466 conspired to deprive them of theirFourteenth Amendment right to equal protection of the laws, inviolation of 42 U.S.C. § 1983. Both Middletown and Local 466 haveraised various defenses as to why they are entitled to summaryjudgment on these claims. Each defendant's arguments will beexamined in turn.

1. Middletown's Defenses to Section 1983 Claims

Middletown argues that it is entitled to summary judgment onthis claim because it has municipal immunity under the guidelinesestablished by Monell v. Dep't of Soc. Servs., 436 U.S. 658(1976). Section 1983 provides a remedy when any person

under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws. . . .42 U.S.C. § 1983. Section 1983 "is not itself a source ofsubstantive rights," and may not be used to assert Title VIIclaims. Baker v. McCollan, 433 U.S. 137, 144 n. 3 (1979). ATitle VII plaintiff, however, may bring a concurrent § 1983claim, as long as "some law other than Title VII is the source ofthe right alleged to have been denied." Saulpaugh v. MonroeCmty. Hosp., 4 F.3d 134, 143 (2d Cir. 1993). Here, theplaintiffs claim that Middletown's alleged discriminatory actsindependently violated their constitutional rights to equalprotection.

In Monell, the Supreme Court examined the question of whethera municipality ever could be considered a "person" for thepurposes of a section 1983 action. The Court determined thatlocal governments were not wholly immune from suit under thestatute, but also held that municipalities could not be heldliable solely on a theory of respondeat superior. SeeMonell, 436 U.S. at 663. Therefore, in a section 1983 action,municipalities are not liable for the constitutional torts oftheir employees. Local governments only may be sued for actionsthat implement or execute a discriminatory "policy statement,ordinance, regulation, or decision officially adopted andpromulgated by" municipal officers, or for "deprivations visitedpursuant to governmental `custom' even though such a custom hasnot received formal approval through the body's officialdecisionmaking channels." Id. at 690-91. Finally, "although incertain circumstances a Title VII claim may be establishedthrough proof of a defendant's mere negligence . . . a plaintiffpursuing a claimed violation of . . . denial of equal protectionunder § 1983 must show that the discrimination was intentional"on the part of the defendant. Patterson v. County of Oneida,375 F.3d 206, 226 (2d Cir. 2004).

To survive a motion for summary judgment on their section 1983claims, the plaintiffs not only must show that they suffered a deprivation of rightsbased upon municipal policy or custom, but that their claims arenot time-barred. Discrimination claims pursued through § 1983 arenot subject to the timely-filing provisions of Title VII.Instead, the federal court looks to state law for the analogouspersonal injury statute of limitations. "In Connecticut, actionsbased on 42 U.S.C. § 1983 are governed by a three-year statute oflimitations, as provided by Conn. Gen. Stat. § 52-577." ManatuckAssocs. v. Wendt, 1997 U.S. Dist. LEXIS 19726, * 43 (D. Conn.Nov. 21, 1997). Because this action was filed on May 15, 2002,the plaintiffs may not bring claims based on conduct thatoccurred before May 15, 1999. Plaintiffs' timely allegationsagainst Middletown that may be considered under § 1983 thereforeinclude the contract negotiations with Local 466 beginning inAugust 1999, as well as Middletown's attempted removal of Kasperfrom the city employees' retirement committee in June 2000.

The collective bargaining agreement between Middletown andLocal 466 may qualify as a municipal "policy" under Monell,since Middletown signed and adopted the provisions of theagreement. The plaintiffs, though, have not made any showing thatthe policy itself was discriminatory, other than to claim thatthe agreement's terms applied first only to blue-collaremployees. Their real claim is that the underlying negotiationprocess was discriminatory, causing the white-collar workers notto be extended the contract's benefits for an additional sevenmonths. A municipality may only be held liable when the policyitself, "whether made by its lawmakers or by those whose edictsor acts may fairly be said to represent official policy, inflictsthe injury." Back v. Hastings-on-Hudson Union Free Sch. Dist.,365 F.3d 107, 128 (2d Cir. 2004) (quoting Monell,436 U.S. at 694).

Further, the plaintiffs have not identified any specificactions taken by Middletown in implementing that collective bargaining agreement which worked adiscriminatory deprivation upon them on the basis of sex. To makeout a claim of gender discrimination in violation of the EqualProtection Clause, a plaintiff "must prove that she sufferedpurposeful or intentional discrimination on the basis of gender."Id. at 118. The plaintiffs have offered no evidence that thecollective bargaining process was motivated by discriminatoryintent on the part of Middletown, as Patterson and Backrequire. Nor have they offered any evidence to discountMiddletown's proffered nondiscriminatory reason for separatingthe two bargaining processes (i.e., because the white-collaremployees had a pending petition for independent representation)as pretextual. Nor have they alleged that they were treateddifferently from similarly situated employees (e.g., malewhite-collar workers). Finally, any claim of deprivation isundercut by the fact that in October 2000, white-collar workersreceived additional compensation to make them whole as of thecontract's retroactive effective date of June 30, 1999, leavingthem in the same position as blue-collar workers.

Generally, summary judgment is to be used sparingly when thethreshold question is one of the defendant employer's intent.See Dister v. Continental Grp., Inc., 859 F.2d 1108, 1114 (2dCir. 1988). Nonetheless, to survive summary judgment, theplaintiff must "offer `concrete evidence from which a reasonablejuror could return a verdict in his favor,' and is not entitledto a trial simply because the determinative issue focuses uponthe defendant's state of mind." Id. (quoting Anderson v.Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). Becauseplaintiffs have failed to offer any such concrete evidence, theyhave failed to make a prima facie case of denial of equalprotection. See also Patterson, 375 F.3d at 228-29 (holdingthat conclusory and unsupported assertions by plaintiff areinsufficient to withstand a motion for summary judgment on a section 1983 claim).

Kasper also alleges that Middletown attempted to remove her asa member of the city employees' retirement system. She hasprovided no evidence that this attempted removal was pursuant toany municipal policy or custom. Nor has she provided any evidencethat she suffered a constitutional deprivation, since her ousterfrom the committee was attempted but not completed. Kasper failsto make a prima facie case of denial of equal protection on thisclaim.

Accordingly, the Court grants summary judgment for defendantMiddletown as to plaintiffs' claims under 42 U.S.C. § 1983.

2. Local 466's Defenses to Section 1983 Claims

Local 466 argues that it also is entitled to summary judgmenton the plaintiffs' § 1983 claims, on the grounds that a union isnot properly a state actor under § 1983, and thus its actionscannot be reached through the provisions of that statute.Generally, labor unions are not considered state actors. SeeCiambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir.2002). Plaintiffs concede that Local 466 is not a governmentalentity; instead, they allege that because Local 466 engaged inconcerted activity with the city of Middletown to depriveplaintiffs of their constitutional rights, the labor union'sactions were carried out under color of state law.

A private entity may be found liable under § 1983 if it "is awillful participant in joint activity with the State or itsagents." Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970)(quoting United States v. Price, 383 U.S. 787, 794 (1966)). A"merely conclusory allegation" of such concerted activity,however, "does not suffice to state a § 1983 claim against theprivate entity." Ciambriello, 292 F.3d at 324. In order todefeat a motion for summary judgment on such a claim, "plaintiffsmust present sufficient evidence to support an inference that animproper conspiracy took place." McGovern v. Local 456, Internat'lBrotherhood of Teamsters, 107 F. Supp. 2d 311, 316-17 (S.D.N.Y.2000).

Plaintiffs have provided no specific evidence of concertedconduct by Middletown and Local 466, other than their claim thatthe defendants jointly arranged to transport blue-collar workersin city vehicles to a union election, a privilege denied towhite-collar workers. That election, however, took place inJanuary 1999 and therefore is barred by the three-year statute oflimitations applicable to § 1983 actions.

Plaintiffs also allege that Local 466 and Middletown acted inconcert to negotiate a more advantageous contract for blue-collaremployees. When a union represents city employees in contractnegotiations, however, it is considered to be acting adversely tothe city government and not acting under color of state law.See id. at 317; see also Philadelphia Fraternal Order ofCorrectional Officers v. Rendell, 1996 U.S. Dist. LEXIS 7621,*26 (E.D. Pa. June 4, 1996) (holding same). While theoreticallyit is possible that a union could collude with a municipality todisadvantage a selected group of workers, plaintiffs have failedto offer even a scintilla of evidence that Local 466 andMiddletown were so colluding or otherwise operating underimproper motives. Although white-collar employees worked underthe old contract for seven months longer than blue-collaremployees, that fact alone is insufficient for the Court to inferthat the defendants engaged in concerted discriminatory conductin an attempt to produce such a result.

Finally, plaintiffs allege that Local 466 acted in concert withMiddletown in its attempted removal of plaintiff Kasper from thecity employees' retirement committee in June 2000. Plaintiffs,however, have provided no evidence of such concerted activity,other than to allege that it took place. As Ciambriello states, such conclusoryallegations are insufficient to withstand a summary judgmentmotion. Ciambriello, 292 F.3d at 324. Therefore, the Courtgrants summary judgment for defendant Local 466 as to allplaintiffs' claims under 42 U.S.C. § 1983.26

4. Plaintiffs' Claims of Intentional Infliction of EmotionalDistress (Count Four)

In Count Four of their complaint, plaintiffs allege that thedefendants' discriminatory conduct constituted the common lawtort of intentional or reckless infliction of emotional distress.Because it has disposed of all the federal claims before it, theCourt declines to exercise supplemental jurisdiction over theplaintiffs' remaining state law claim. See28 U.S.C. § 1367(c)(3). Both the Second Circuit and the Supreme Court agreethat when all federal claims are dismissed, the "state claimsshould be dismissed as well." Lanza v. Merrill Lynch & Co.,154 F.3d 56, 61 (2d Cir. 1998) (quoting United Mine Workers v.Gibbs, 383 U.S. 715, 726 (1966)).

III. Conclusion

For the reasons stated above, defendants Middletown and Moore'sMotion to Dismiss or in the Alternative for Summary Judgment[Doc. # 47] and defendant Local 466's Motion to Dismiss or forSummary Judgment [Doc. # 50] are GRANTED in their entirety. Theclerk is directed to order judgment in favor of the defendants and closethis case.


1. Moore currently is Middletown's Director of Personnel. Atoral argument, the plaintiffs represented that they withdrew allclaims against Moore on this count, as she was not employed byMiddletown at the time of the alleged violations.

2. The plaintiffs represented at oral argument that they alsowithdrew all claims against Moore as to this count. Moore was notnamed in Counts One and Two of the complaint. Therefore, theCourt considers Moore to be dismissed from this action.

3. The following facts are taken from the parties' Local Rule56 Statements, as well as materials submitted with the parties'summary judgment motions, and are undisputed unless otherwiseindicated.

4. The Local 466 leadership structure consists of a President,a First Vice President, and four divisional Vice Presidents.While the First Vice President may be from any job category, twoof the divisional vice presidents must be representatives of thewhite-collar employees at City Hall and at the Board ofEducation. Kerkes had served as divisional vice president for thewhite-collar school board employees since 1997.

5. In their protest to AFSCME, Kasper and Kerkes also allegedthat blue-collar vice-presidential candidate Philip Lombardo haddriven voters to the polls, an privilege that no other candidateenjoyed and one that violated the AFSCME Bill of Rights for UnionMembers.

6. The AFSCME panel dismissed the complaint about PhilipLombardo's driving members to the polls, as there was conflictingtestimony as to whether he provided such assistance.

7. The results of this second election are not clear from therecord before the Court. A letter signed by Kerkes and Kasper onAugust 12, 1999, however, lists their titles as Local 466 VicePresident and White-Collar City Hall Vice President,respectively. In any case, plaintiffs have not made anyallegations in their complaint as to this second election.

8. Of the votes counted, 59 ballots were in favor of aseparate unit affiliated with CILU, 53 were in favor of aseparate unit affiliated with AFSCME, and 19 were for remainingaffiliated with Local 466. Twenty-six ballots, those cast bycafeteria workers, were impounded and not added to the finaltotals. This was due to Middletown's challenging theappropriateness of including cafeteria workers in thewhite-collar union. CILU later abandoned its attempt to representthe cafeteria workers and mooted the issue.

9. During the period of SBLR review, white-collar workersreceived the same salaries and privileges set by the previouscollective bargaining agreement. Kasper and Kerkes also protestedthe decision to hold the white-collar negotiations in abeyanceand filed additional complaints with the SBLR, arguing that thedecision to postpone such negotiations violated the ConnecticutMunicipal Employees Relations Act. The status of those complaintsis not clear from the record before the Court, but neitherplaintiff specifically raises them as an issue in this action.

10. From the documents before the Court, "civiliandispatchers," as they are referred to, appear to be classified aswhite-collar employees.

11. In oral argument before the Court, the plaintiffs did notcontest treating defendants' motions as motions for summaryjudgment.

12. As noted previously, both groups of employees ultimatelyreceived supplemental compensation to make them whole under thecontract's retroactive effective date of June 30, 1999.

13. The Court assumes for the purposes of this ruling that thedates of Kasper's and Kerkes' filings with the CHRO control forpurposes of determining their respective relevant limitationsperiods.

14. From the Complaint, those allegations appear to be thatMiddletown assisted in transporting blue-collar workers in cityvehicles to the election site. The plaintiffs offered no evidencein support of this allegation at the summary judgment stage.Plaintiffs' similar charges, raised as an election grievance toAFSCME, were dismissed due to conflicting evidence as to whethersuch assistance occurred.

15. As discussed previously, that memorandum included a clauseproviding that, should the SBLR deny the white-collar employees'petition for separate representation, negotiations would expandto cover those employees under a single consolidated collectivebargaining agreement.

16. While plaintiffs allege that Middletown and Local 466entered into a discriminatory contract in March 2000, there is noevidence before the Court that any collective bargainingagreement was signed by defendants during that month. From thesubstance of their allegations, it appears that plaintiffs arecomplaining about the successor collective bargaining agreementfor blue-collar employees, which took effect on April 6, 2000.The extension of that contract to white-collar employees wassigned on October 25, 2000.

17. The plaintiffs have not made out a disparate treatmentclaim, because they do not allege that the collective bargainingagreement operates in an intentionally sexually discriminatorymanner, nor that the underlying negotiations operated on a basisof intentional sex discrimination. Nor do plaintiffs allege thatsimilarly situated male white-collar employees were treateddifferently from them. Kasper and Kerkes merely allege that thedefendants agreed to negotiate on behalf of the (mostly male)blue-collar employees first, without waiting for the resolutionof the (mostly female) white-collar employees' carve-outpetition. This caused those blue-collar employees to receivehigher salaries under the new collective bargaining agreement forseveral months before white-collar employees were able to receivethe same benefits. Kasper and Kerkes also allege that thecontract contains non-gender-neutral language assuming that thecovered blue-collar employees are male. The Court does notconsider this latter allegation to be one of discriminatoryanimus, merely a sad vestige of the English language's preferencefor what has been called the "generic masculine." CompareDebora Schweikart, The Gender Neutral Pronoun Redefined, 20Women's Rts. L. Rep. 1 (1998). Accordingly, as there is noshowing of intentional sex discrimination or animus, the Courtevaluates plaintiffs' claim under the disparate impact theoryonly.

18. The McDonnell Douglas burden-shifting framework is onlynecessary when the plaintiff has failed to offer direct evidenceof discriminatory intent. See Swierkiewicz v. Sorema,534 U.S. 506, 511 (2002) ("If a plaintiff is able to produce directevidence of discrimination, he may prevail without proving allthe elements of a prima facie case.") (citing Trans WorldAirlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)); Johnsonv. New York, 49 F.3d 75, 78 (2d Cir. 1995) ("The McDonnellDouglas framework, which guided the district court's analysis,is intended to assist the fact-finding process when the plaintiffis unable to present direct evidence of discrimination."). Here,the plaintiffs have not offered any direct evidence ofdiscriminatory intent; therefore, the McDonnell Douglas inquiryis appropriate.

19. Kasper alleged that she was verbally harassed by Local 466officials "on behalf of defendant Local 466." See Doc. #1 at ¶23. To hold Middletown liable for these actions under Title VII,Kasper would further have to demonstrate "a specific basis forimputing the conduct creating the hostile work environment to theemployer." Feingold v. New York, 366 F.3d 138, 150 (2d Cir.2004). That burden may be satisfied by a showing that "theemployer either provided no reasonable avenue for complaint orknew of the harassment but did nothing about it." Id. (quotingKaribian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir. 1994).Kasper alleged that she reported the harassment to Middletown'sHuman Resources Department, which took no action. Middletown'salleged failure to respond is moot, however, because the conductdoes not rise to the level of a hostile work environment.

20. Kasper provides no dates for when the alleged verbalharassment occurred. From the structure of her complaint, theCourt infers that it took place sometime between January 1999 andJune 2000.

21. The Court also does not find Kasper's claim that she, as awhite-collar employee, was forced to work under a lessadvantageous contract than blue-collar employees supports hostilework environment liability. Kasper fails to provide any evidencethat the experience of working under a different contractspecifically caused her work environment to be permeated withdiscriminatory ridicule, harassment, or insult. While thecircumstances surrounding the collective bargaining agreement maybe otherwise actionable, they fail to constitute harassingbehavior sufficiently severe or pervasive to cause a hostile workenvironment. See Brown v. Coach Stores, 163 F.3d 706, 713 (2dCir. 1998).

22. Neither group of employees, however, ultimately receivedbetter salary or benefits than the other, since upon beingsubject to the new collective bargaining agreement, workersreceived additional monies to compensate them as of thecontract's retroactive date of June 30, 1999.

23. While plaintiffs complain that they were not subject tothe new collective bargaining agreement's terms as immediately asthe blue-collar workers, the plaintiffs have not established anadverse employment action, as they did not suffer any diminutionin their own benefits or other materially adverse change in theterms and conditions of their employment. As for plaintiffs'putative disparate impact claim, plaintiffs did include somefigures in their complaint showing that Local 466's white-collarworkers were predominantly female, while the union's blue-collarworkers were predominantly male. Such figures may suggest a"bottom-line" gender imbalance in the union. That kind of datastanding alone, however, can not establish a prima faciedisparate impact claim. See, e.g., Robinson v. Metro-NorthCommuter R.R., 267 F.3d 147, 160 (2d Cir. 2001). In respondingto the defendants's summary judgment motions, plaintiffs failedto provide any evidence supplementing the allegations in theircomplaint.

24. As to plaintiffs' claims of attempted expulsion, Local 466alternatively argues that these claims are time-barred. Insupport of its argument, Local 466 offered an exhibit from anAFSCME judicial panel member's decision, expelling plaintiffsfrom the AFSCME International parent union on August 12, 1999.See Docs. # 52, 53. This date falls outside the 300-daylimitations period for Title VII claims. Therefore, Local 466'sattempt or effort to have the International expel plaintiffscould not have occurred within the appropriate limitations periodunder Title VII. In response to Local 466's assertions, plaintiffs filed amotion to strike this exhibit, and a portion of Local 466's Rule56 statement concerning the expulsion, on the grounds that theywere hearsay and that findings made in a private proceeding hadno collateral estoppel value in this action. See Doc. # 58. Inboth their complaint and their own Rule 56 statement, plaintiffscontinued to allege only that Local 466 attempted to expelthem. In neither filing did the plaintiffs offer any dates as towhen this attempted expulsion took place. The Court thereforerelies on the AFSCME record and defendants' Rule 56 statements toestablish the appropriate dates, since it has no contraryevidence before it, and it is likely that the decision of theAFSCME judicial panel member would be admitted as a businessrecord under Fed.R. Evid. 803(6), at least for the purpose ofestablishing that a ruling of expulsion was made and its date.The Court concludes that plaintiffs' allegations fail as a matterof law on either of two grounds: because they are time-barredunder Title VII, or because plaintiffs alleged only that theywere subject to attempted expulsion by Local 466, and thereforefailed to show evidence of an adverse employment action. To clarify a fine point apparently recognized by the plaintiffsin their complaint and Rule 56 statement, it was Local 466 thatattempted to expel plaintiffs, but it was only the Internationalthat apparently had the authority to expel them. That is becauseit was not expulsion from Local 466 that was pursued, butexpulsion from the International. That expulsion occurred onAugust 12, 1999, and Local 466's efforts at expulsion precededit. The International is not a defendant here, so the plaintiffsonly challenge the attempt or effort of Local 466 to produce theexpulsion of plaintiffs from the International.

25. Of course, if the labor organization is sued in itscapacity as an employer, it may be subject to hostile workenvironment liability. See generally Yerdon v. Henry,91 F.3d 370 (2d Cir. 1996). Neither of the plaintiffs in this casehas suggested that Local 466 is her employer.

26. Additionally, if plaintiffs are claiming that theirattempted expulsion from AFSCME International by Local 466 isactionable under 42 U.S.C. § 1983, that claim is also barred.Although the three-year statute of limitations for § 1983 actions(here, encompassing events occurring after May 15, 1999) mayinclude some conduct beyond the 300-day period that applies toTitle VII claims, any § 1983 claim can not succeed because it isbased only on attempted expulsion. See n. 24, supra.

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