Summary
holding that a two-month gap defeated a retaliatory nexus
Summary of this case from Zabar v. N.Y.C. Dep't of Educ.Opinion
98 Civ. 9017 (SAS)
January 2, 2002
Plaintiff (Pro Se): Mamdouh Hussein, P.O. Box 15470, Jersey City, New Jersey 07307, (201) 653-7856.
For Defendants: Barry Saltzman, Esq., Herrick Feinstein LLP, 2 Park Avenue, New York, New York 10016, (212) 592-1575.
OPINION AND ORDER
I. INTRODUCTION
Pro se plaintiff Mamdouh Hussein has sued defendants for alleged violations of the Labor Management Reporting and Disclosure Act ("LMRDA"), 29 U.S.C. § 401 et seq., and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., ("Title VII"). In particular, the Complaint alleges that the Hotel Employees and Restaurant Union, Local 6 ("Local 6" or the "Union") and the individual defendants retaliated against Hussein for his criticism of certain Union policies, in violation of LMRDA §§ 101(a)(1) and 609, 29 U.S.C. § 411 (a)(1) and 529. The Complaint further alleges that the Union violated Title VII by refusing to change its longstanding roll call procedures for per diem jobs, thereby denying Hussein an individualized religious exemption from attendance at Friday afternoon roll calls.
On August 11, 2000, I issued an Opinion and Order granting defendants' motion for summary judgment for failure to state a claim. See Hussein v. Hotel Employees Restaurant Union, Local 6, 108 F. Supp.2d 360, 372 (S.D.N.Y. 2000). Familiarity with this Opinion is assumed. Subsequently, the Second Circuit vacated this judgment because plaintiff was not given proper notice regarding pro se opposition to a summary judgment motion as required by cases such as McPherson v. Coombe, 174 F.3d 276, 281 (2d Cir. 1999). See Summary Order dated June 28, 2001. This was done despite plaintiff's status as an experienced pro se litigant, having brought numerous lawsuits in this Court over the years.
Upon remand, plaintiff was given another opportunity to oppose defendants' motion for summary judgment. Plaintiff submitted his own affidavit as well as affidavits by Elias J. Simadiris, Hamouda Desouki, and Jack Chase, all members of Local 6. Appended to these affidavits are numerous and voluminous exhibits. In further support of their motion, defendants submitted a reply memorandum of law and affidavits from Barry N. Saltzman, defendants' attorney, Adela Maya, roll call dispatcher for Local 6, and Peter Ward, Business Manager of Local 6. The additional submissions by Hussein do not alter the findings and conclusions in my earlier Opinion. I therefore incorporate that Opinion into this Opinion and Order as if fully set forth herein.
I. DISCUSSION
A. Hussein Has Failed to Raise a Genuine Issue of Material Fact with Regard to His LMRDA Claim
Defendants' original motion papers established an absence of causation between Hussein's purported protected activity and his suspension. Hussein's opposition papers do not raise any material issue of fact that would permit a reasonable jury to find selective prosecution. Hussein does not contest that two other roll call waiters, Constantine and Paroussiadis, were involved with Hussein in an disruptive incident at roll call. Constantine and Paroussiadis had not previously engaged in any anti-Union activity yet all three waiters were treated identically. This uniformity in treatment establishes defendants' legitimate non-discriminatory reason for any adverse employment action.
Hussein contends that his purported protected activity should shield him from being disciplined in the same manner as similarly situated waiters, a contention which must be rejected as a matter of logic and policy. In Matima v. Celli, 228 F.3d 68, 79 (2d Cir. 2000), petition for cert. filed, ___ U.S.L.W. ___ (U.S. Apr. 10, 2001) (No. 00-10458), the Second Circuit held that "[a]n employer does not violate Title VII when it takes adverse employment action against an employee to preserve a workplace environment that is governed by rules, subject to a chain of command, free of commotion, and conducive to the work of the enterprise." This is precisely the sort of action taken by the Union against Hussein, Constantine and Paroussiadis, in order to protect the roll call from disruption. Having engaged in disruptive conduct which interfered with the Union's ability to supply jobs in an orderly fashion, and having been treated in an identical manner to the two other waiters involved in the same incident, Hussein's claims of discrimination and retaliation must be dismissed on summary judgment.
Although Hussein submits several supplemental affidavits, including two from his original affiants, Simadiris and Chase, along with voluminous argument and exhibits, nothing he submitted refutes the essential point that Hussein received the same treatment as the two other waiters involved in the disruption Hussein created. Nor does Hussein establish any retaliatory nexus. Moreover, the incidents described in these submissions occurred many months or years prior to or, in some cases, after the events challenged in the Complaint. As such, they do not establish a retaliatory nexus. See Manoharan, M.D. v. Columbia Univ. Coll. of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988) ("Proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action.").
The submissions describe an early 1990 Trial Board proceeding involving a Sal Noto. These events long preceded the roll call disruption at issue and are therefore irrelevant. These materials also describe situations where the affiants believe other Union members employed full-time at hotels such as the Vista enjoyed better terms of employment than did per-diem waiters. Aside from the unsurprising fact that full-time employees may be better off than per diem workers, these stale grudges are both unproven and irrelevant to this case. Indeed, Judge Sidney Stein of this Court rejected such allegations in Hussein v. Sheraton New York Hotel, 100 F. Supp.2d 203, 208-09 (S.D.N.Y. 2000), warning Hussein against repeated filings of just such frivolous actions. See also Haerum v. Air Line Pilots Ass'n, 892 F.2d 216, 221 (2d Cir. 1989) (a union by necessity must differentiate among its members in a variety of contexts).
Hussein also offers the affidavit of Hamouda Desouki who was available to testify at the Trial Board on Hussein's behalf in early 1997, but did not do so. Desouki's recollection of the November 1996 roll call disruption, contradicted by Trial Board testimony, does not change the fact that the Union acted reasonably based on the information provided to it at the time.
Hussein's claims of discrimination by the Pierre Hotel during the first half of the 1990's, for which he apparently criticizes the Union, were dismissed by this Court in Hussein v. Pierre Hotel, No. 93 Civ. 3698, 1996 WL 19029, at *5 (S.D.N.Y. Jan. 18, 1996), aff'd, 104 F.3d 350 (2d Cir. 1996). In that case, this Court held that Hussein failed to create a genuine issue of fact with respect to the Union's alleged breach of its duty of fair representation. Hussein's references to events occurring in 1998-2000 involving the Millennium Broadway Hotel, completely unrelated to this action, were decided by this Court in Shait v. The Millennium Broadway Hotel, No. 00 Civ. 5584, 2001 WL 536996, at *12 (S.D.N.Y. May 18, 2001) (granting summary judgment for Union finding no breach of the Union's duty of fair representation).
Hussein's references to the Union's good faith efforts to settle this litigation, including material from mediation, prove only that the Union attempted to conserve its limited resources. Such settlement material are, of course, inadmissible. See United States v. OCCI Co., 758 F.2d 1160, 1165 n. 6 (7th Cir. 1985) (facts inadmissible under Federal Rule of Evidence 408 cannot support or oppose a motion for summary judgment).
Hussein claims that Ward told him he would be evicted from the Union for anti-Union conduct. This never happened. Hussein was disciplined for initiating a violent disruption of the roll call, together with two other similarly situated waiters with no prior record of anti-Union behavior.
Finally, Hussein's claims that dispatcher Adela Maya told him and others that she did not bring the internal Union complaint against him or the other two waiters proves nothing. It is undisputed that Maya was not the dispatcher on the day of the disturbance and the acting dispatcher was new. Under these circumstances, the Union properly prosecuted the complaint by its officers. In short, Hussein's submissions fail to raise any material issue of fact. Hussein was treated the same as the other waiters involved in the roll call disruption. Accordingly, the Union's motion for summary judgment dismissing plaintiff's LMRDA claim is granted.
B. Hussein Has Failed to Create a Genuine Issue of Material Fact Concerning His Title VII Claim
1. Hussein Has Not Raised Any Issue of Fact in Opposition to the Union's Hardison Defense
One ground for defendants' motion for summary judgment is the decision in Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) and its recent progeny, Weber v. Roadway Express, Inc., 199 F.3d 270, reh. denied, 210 F.3d 365 (5th Cir. 2000). In Hardison, the Supreme Court held that allocating days off under a neutral union system need not accommodate religious beliefs, bona fide or not. See Hardison, 432 U.S. at 80-81. As in Hardison and Weber, the Union's roll call rules establish a neutral system of allocating job opportunities which do not accommodate Hussein's religious preferences.
Hussein does not contest that the Union roll call rules are grounded in the Industry Wide Agreement, which is the collective bargaining agreement between the Union and Hotel Association governing the terms and conditions of employment for thousands of Union members including roll call waiters. As such, Hardison and Weber govern. Indeed, the Union owes all its members an equal duty of fair representation, without preference to any religious group. See, e.g., Rodolico v. Unisys Corp., 96 F. Supp.2d 184, 187 (E.D.N.Y. 2000) ("The duty of fair representation is a judicially created rule established due to the status of labor unions as the exclusive bargaining representative for all employees in a given bargaining unit.").
As Hussein has failed to raise any issue as to the controlling authority of Hardison to this case, summary judgment dismissing plaintiff's Title VII claim is fully justified.
2. Hussein Has Created No Issue of a Bona Fide Religious Belief Conflicting With the Union's Roll Call Rules
Defendants have offered proof that the Muslim religious practice for Fridays can be accommodated in the early afternoon, leaving plenty of time for Hussein to be at roll call at 3:30 p.m. See Memorandum of Law in Support of Defendants' Motion for Summary Judgment at 17-18 ("Def. Mem.") (citing "An Employer's Guide to Islamic Religions Practices," a 1997 pamphlet published by the Council on American-Islamic Relations in Washington, D.C.); see also Elmenayer v. ABF Freight Systems, No. 98-CV-4061, 2001 WL 1152815, at *12 (E.D.N.Y. Sept. 20, 2001) (Muslim Friday congregational prayer normally takes less than an hour between noon and 2:00 p.m.).
Hussein's affidavits in opposition do not establish that any bona fide religious belief actually conflicts with his obligation to attend roll call. Hussein's reason for missing roll call (i.e., to attend the jumah prayer at his mosque in Jersey City) is no more compelling than the reasons rejected in Tiano v. Dillard Dep't Stores, 139 F.3d 679, 682 (9th Cir. 1998) (rejecting employee's request for time off to make a religious pilgrimage), or in Wessling v. Kroger Co., 554 F. Supp. 548, 552 (E.D.Mich. 1982) (denying employee's request to leave work early in order to prepare for a church play). Accordingly, plaintiff's religious demands do not require Title VII protection and must be rejected.
Despite a second opportunity to bolster his claim, Hussein continues to rely almost exclusively on the lay Affidavit of Moustafa El-Shariki ("El Shariki Aff."). The El Shariki Affidavit does not establish a bona fide religious belief in conflict with the Union's neutral roll call rules. El Shariki nowhere states that the Friday jumah congregational prayer cannot be performed in a New York City mosque, which would permit Hussein to attend Friday roll call. Indeed, Hussein himself admitted at deposition that any Moslem can pray in any mosque.
Furthermore, Hussein admitted that the Muslim requirement is only "to take a couple of hours in the afternoon of Friday." See Affidavit of Mamdouh Hussein in Opposition to Defendants' Motion for Summary Judgment, dated May 2, 2000, ¶ 6 (emphasis added).
El Shariki does not contradict Hussein's own affirmation on this point. Hussein's own conduct proves that there is no bona fide conflict between his faith and the Union's roll call rules.
Hussein's failure over several years to provide a clerical authorization akin to a doctor's note or jury duty certification as required by Union practice is telling. Hussein admitted that he knew of this requirement, yet to date has never provided the Union with anything but his own unsubstantiated demands. After considering Hussein's past roll call attendance on Fridays and the behavior of other Muslims represented by the Union, the Union's adherence to its neutral roll call rules cannot be deemed unreasonable or discriminatory. Moreover, the Union notes that in four different months Hussein initiated telephone conference calls relating to this litigation on Friday afternoons at the very time he claims he could not be free for roll call. See Def. Mem. at 20. Hussein offers no explanation for this apparent inconsistency.
In short, Hussein's Title VII claim boils down to his desire to obtain one more day off each week, without compliance with industry and contract rules, but with full financial benefits, giving him an advantage over all other roll call waiters. This cannot be permitted.
III. CONCLUSION
For the reasons set forth above, no genuine material issue of fact or law exists with respect to any of plaintiff's claims. Accordingly, defendants' motion for summary judgment is granted and the Complaint is dismissed.
SO ORDERED: