Grabsky v Jennings
Annotate this CaseDecided on October 1, 2004
Civil Court, New York County
CYNTHIA GRABSKY, Plaintiff,
against
THOMAS JENNINGS, DISTRICT COUNCIL 37 and LOCAL 372, and AMERICAN FEDERATION OF STATE COUNTY AND MUNICIPAL EMPLOYEES, Defendants.
306TSN2000
Jeffrey K. Oing, J.
Defendants, Thomas Jennings ("Jennings"), District Council 37 ("DC 37") and American Federation of State County and Municipal Employees ("AFSCME"), move for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint against them, and for an order, pursuant to NYC Admin Code § 8-502, awarding costs and attorneys' fees.
Defendant Local 372 ("Local 372"), cross-moves for an order, pursuant to CPLR 2215 and 3212, for an order granting summary judgment dismissing the complaint against it.
Plaintiff, Cynthia Grabsky, cross-moves for an order, pursuant to CPLR 3212, granting her summary judgment on her complaint against defendants.
Facts
Plaintiff, employed by the New York City Board of Education since 1986 as a School [*2]Aide, became a grievance representative in 1992. She was 57 years old at the time. Grievance representatives serve union members by filing grievances, visiting union members at their school locations, and handling disciplinary proceedings for union members. As a grievance representative, plaintiff earned $941 per week. In or about September 1996, approximately four years later, plaintiff was returned to her position as a School Aide, which she is currently employed as. As a school aide, plaintiff earns $191 per week.
Defendant AFSCME is the parent organization of defendant DC 37. DC 37 is an umbrella district council and consists of fifty-six affiliated local unions, which includes defendant Local 372, whose members are employees of the City of New York and related agencies.
Defendant Jennings was the Director of the Schools Division for DC 37 from approximately January 1981 to August 1986, and from September 1987 to February 1999. During the relevant period, defendant Jennings supervised plaintiff while she worked as a grievance representative.
On March 6, 1998, plaintiff commenced this action against defendants claiming that her return to her current position was retaliatory and that she was subject to harassment and discrimination. Specifically, in asserting three causes of action based on defendants' violation of various state and federal statutes, she alleges that a hostile work environment existed with the actual or tacit approval of defendants. Plaintiff seeks, inter alia, back pay, reinstatement, and compensatory and punitive damages.
Discussion
The record demonstrates sharp issues of fact concerning the working relationship between plaintiff and defendant Jennings, which require an assessment of credibility to be conducted only by a trier of fact (Stratakis v Ferncliff Manor Home for the Handicapped, 308 AD2d 397, 398 [1st Dept 2003]). Suffice to say, Sandra Davis' affidavit and EBT testimony further demonstrates why resolution of this action cannot be summarily accomplished. In her affidavit, dated April 9, 2004, in support of defendant Jennings' summary judgment motion, Ms. Davis gives the following testimony:
On one occasion I was upset with Mr. Jennings when he said he was tired of the black bitches. I complained to Mr. Jennings's boss and Mr. Jennings was seriously reprimanded for his comment, in fact he was removed from the Schools Division for one year. Mr. Jennings apologized to me and the one incident was forgotten. I do not believe that Mr. Jennings discriminated against me on account of my race and I did not make an allegation of race discrimination or any other type of discrimination against Mr. Jennings or District Council 37.
(Glynn Affirm., April 14, 2004, Ex. A, ¶ 6). Ms. Davis testified to this account at her July 22, 2003 EBT (Davis EBT, at pp. 10-13).
The question that remains is who employed plaintiff. DC 37 contends that Local 372 employed plaintiff. Not surprisingly, Local 372 argues that DC 37 employed her. The record demonstrates that both go to great lengths in disavowing an employment relationship with plaintiff.
Undisputedly, defendant Jennings supervised plaintiff while she worked as a grievance representative. Although he was plaintiff's supervisor, DC 37, nevertheless, argues that Local [*3]372 is plaintiff's employer given that its past president, Charles Hughes, hired plaintiff, and that plaintiff was paid by Local 372 (Jennings Aff., ¶ 7). In further support of its argument, DC 73 asserts that plaintiff's hiring and firing were controlled by Local 372 and supports that assertion by pointing to defendant Jennings' EBT testimony where he testified that "[Charles Hughes] had the total decision making authority for all grievance reps" and that "[e]verything had to go through Charlie Hughes or his office" (Jennings 9/18/02 EBT, at p. 128).
Local 372 essentially concedes that during the relevant period it was charged with payroll related costs arising out of plaintiff's employment as a grievance representative (Canales Aff., ¶ 8). Aside from this remote involvement, Local 372 contends that it cannot be deemed as plaintiff's employer because it "did not perform any personnel related functions with respect to the grievance representative" (Id.). To that end, Local 372 points to the fact that all personnel records of grievance representatives, including the personnel file of plaintiff, which would include hiring and termination decisions, are maintained by DC 37 (Id.).
The record is clear that both DC 37 and Local 372 are separate and distinct from each other. They are separate labor organizations governed by their own constitution and operated by their own elected officers. The record is also clear that Local 372 is an affiliate of DC 37. Under these circumstances, the situation is that of two defendants claiming that the other is the actual employer. Thus, the facts in this dispute are not of the kind addressed in the federal cases relied on by defendants. The facts in those federal cases deal with parent/subsidiary relationships in which the parent is being sued instead of the subsidiary (Cook v Arrowsmith Shelburne, Inc., 69 F3d 1235 [2d Cir 1995]; Herman v Blockbuster Entertainment Group, 18 F Supp 2d 304 [SDNY 1998]). The question that remains is who was plaintiff's employer. In the context of discrimination claims, the power and authority to hire and fire an employed individual is the key factor to focus on in determining the sufficiency of control to establish whether the entity is the actual employer (Holmes v NYS Human Rights Appeal Bd., 93 AD2d 967 [3d Dept 1983]). Stated differently, the critical question is what entity made the final decisions regarding employment matters related to the person claiming discrimination.
Here, plaintiff was a grievance representative paid by Local 372, but whose work hours, work place, work assignments, and supervision were controlled by DC 37. Those facts are undisputed and clear. But on the critical issue of hiring and firing, the record is not clear. Defendant Jennings himself authored two letters, one, dated July 2, 1996, advising plaintiff that she would be returning to her prior position as a School Aide, and the other, also dated July 2, 1996, advising the NYC Board of Education of her return (Local 372 Cross-Motion, Ex. D).
On the other hand, defendant Jennings testified that "[Charles Hughes] had the total decision making authority for all grievance reps" and that "[e]verything had to go through Charlie Hughes or his office". He vigorously maintains that position in a subsequent affidavit wherein he also states that Mr. Hughes hired plaintiff (Jennings Aff., Jan. 8, 2004, ¶¶ 7-10). In that regard, in spite of their contentions to the contrary, Local 372's failure to submit an affidavit or testimonial evidence from Mr. Hughes on this issue hampers the resolution of this issue, particularly given the apparent close professional relationship between defendant Jennings and Mr. Hughes on issues of employment. In any event, such proofs would merely raise issues of credibility, which can only be resolved by a trier of fact (Stratakis v Ferncliff Manor Home for the Handicapped, [*4]supra, 308 AD2d at 398). Under these circumstances, a factual issue exists as to who was plaintiff's employer. Notwithstanding this finding, this Court also observes that the totality of the factors in this case as enumerated above may also permit an inference, irrespective of who hired or fired plaintiff, supporting a finding that DC 37 and Local 372 were "joint employers" of plaintiff such that both may be held liable for her discrimination claims (see, e.g., DeWitt v Lieberman, 48 F Supp 2d 280, 288 [SDNY 1999]).
Accordingly, the motion and cross-motions for summary judgment are denied. Discovery appears to have been completed. Accordingly, plaintiff is directed to file forthwith a notice of trial with the appropriate Clerk and payment of the appropriate fee. Plaintiff is directed to serve a copy of this order on the appropriate Clerk. Plaintiff is to notify defendant of the trial date. That branch of the motion seeking restitution is denied without prejudice to renew after trial.
This memorandum opinion constitutes the decision and order of the Court.
Dated: October 1, 2004HON. JEFFREY K. OING, C.C.J.
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