Slurs When Discussing Rap, Duty of Fair Representation, and Union's Attempt to "Balance the Racial Sensitivities"

From Magistrate Judge Stewart Aaron's Report and Recommendation today in Kelly v. Comm. Workers of Am. (S.D.N.Y.), the factual allegations (assumed to be true for purposes of the motion to dismiss, though of course there hasn't been any finding yet about what the facts actually were):

Plaintiff, a Caucasian male, was employed by Verizon as a Field Technician from February 21, 2000 until May 19, 2021. During this time, Plaintiff was a member of the Union, which was the sole and exclusive bargaining agent of all Field Technicians employed by Verizon. Verizon and the Union are parties to a collective bargaining agreement (the "CBA") that governs the terms and conditions of Union members' employment. The CBA provides that Plaintiff could be terminated from his employment only for cause and includes a grievance and arbitration procedure which provides the exclusive means of enforcing the terms and conditions of the CBA.

On April 6, 2021, when working in the field, not on Verizon property, and during his lunch break, and while sitting on a park bench, Plaintiff took a personal call during which he discussed the news that rapper DMX had been hospitalized and, in discussing DMX's music, used the word "nigga." Unbeknownst to Plaintiff, he inadvertently had answered a call on his company cellular phone, and a Verizon employee who listened to his private call for approximately forty-five seconds overheard him use the word "nigga."

On April 23, 2021, Verizon suspended Plaintiff pending an investigation for discrimination and harassment. On May 10, 2021, Plaintiff was placed on a ten-day suspension pending dismissal and then was informed that he officially would be terminated by Verizon effective May 19, 2021, for violating Verizon's discrimination and harassment policy, the purpose of which was to maintain a respectful, safe and professional workplace, and a work environment free from abusive behavior.

Plaintiff alleges that many non-Caucasian employees routinely used words like "bitch," "cunt," "nigger," "nigga," "kike," and "spic" in the workplace without being reprimanded or disciplined in any way. Plaintiff also alleges that other employees violated Verizon's zero-tolerance policy against violence and never were disciplined for it.

Plaintiff grieved the termination of his employment. Plaintiff alleges that Union officials understood that Verizon's termination of Plaintiff's employment was without cause, but the Union refused to take Plaintiff's meritorious grievance to arbitration. Plaintiff further alleges that Dennis G. Trainor, the Union's Vice President, District 1, informed Plaintiff that the Union officials believed that arbitrating Plaintiff's grievance would have a negative effect upon the Union's reputation with its members and employees because it would be enforcing the rights of a white man who used the word "nigga" and, therefore, that race was a motivating factor in the Union's decision. Plaintiff also alleges that the Union has arbitrated the grievances of the very few African American employees whom Verizon chose to discipline for using the word "nigger" in the workplace….

The court allowed the case to go forward, denying the union's motion to dismiss:

Plaintiff alleges that Verizon breached its collective bargaining agreement with the Union by terminating his employment without cause (First Count); that the Union unlawfully discriminated against him with respect to the terms and conditions of his employment in violation of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 158(b) (Second Count); and that the Union breached its duty of fair representation owed to Plaintiff (Third Count)….

"In order to provide individual employees with recourse when a union breaches its duty of fair representation in a grievance or arbitration proceeding, the Supreme Court has held that an employee may bring suit against both the union and the employer." Such a suit is known as "a hybrid § 301/duty of fair representation claim."

To prevail on a hybrid § 301/duty of fair representation claim, a plaintiff "must demonstrate both (1) that [his employer] breached its collective bargaining agreement and (2) that [the union] breached its duty of fair representation." The plaintiff "must further establish that any damages he suffered were caused by the union's breach." …

"[A] union breaches the duty of fair representation when its conduct toward a member of the bargaining unit is arbitrary, discriminatory, or in bad faith." "This duty applies to a union's representation of an employee during the grievance process following an employee's termination." "[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." "A union acts discriminatorily where 'substantial evidence' indicates that it engaged in discrimination that was 'intentional, severe, and unrelated to legitimate union objectives.'" "A union acts in bad faith only if it acts fraudulently, deceitfully, or dishonestly."

"Although 'a union may not arbitrarily ignore a meritorious grievance or process it in perfunctory fashion,' members 'do not have an absolute right to have their grievances taken to arbitration.'" "[T]he duty of fair representation is not breached where the union fails to process a meritless grievance," "because 'a union must be allowed to exercise reasonable discretion as to how it can best satisfy the interests of the individual as well as the interests of the collective unit.'"

Plaintiff alleges that Union officials understood that Verizon's termination of Plaintiff was without cause, but that the Union refused to take his meritorious grievance to arbitration and that his race was a motivating factor in its decision. In particular, Plaintiff alleges that "Dennis G. Trainor, the Union's Vice President, District 1, informed Plaintiff that the Union officials believed that arbitrating Plaintiff's grievance would have a negative effect upon the Union's reputation with its members and employees because it would be enforcing the rights of a white man who used the word 'nigga.'" Plaintiff further alleges that the Union did arbitrate the grievances of "the very few African American employees" who were disciplined for using the n-word in the workplace.

The Union argues that "Plaintiff ignores the fact that he was terminated for using a commonly known racial slur" and that "[s]ince Plaintiff made race an issue when he used a racial slur, the Union had a lawful basis to balance the racial sensitivities involved." However, taking Plaintiff's allegations as true, he used the word in a non-pejorative way under circumstances that he contends did not violate Verizon's Code of Conduct and, therefore, did not constitute cause for his termination under the CBA.

Moreover, Plaintiff plausibly alleges that the Union's decision not to arbitrate his claim was not due to the Union's view that his claim lacked merit, but because the Union was worried about the optics of defending Plaintiff's conduct, which undoubtedly goes against longstanding social norms. Certainly, "many people, white and black alike, disapprove of a white person saying [the n-word] under virtually any circumstance." Burlington v. News Corp. (E.D. Pa. 2010) (quoting Randall Kennedy, Nigger: The Strange Career of a Troublesome Word (2003)). Nonetheless, a desire to conform with social norms does not automatically insulate the Union's decision. Cf. Burlington (finding employer could be liable under Title VII for enforcing or condoning the social norm that it is acceptable for African Americans to say n-word but not whites since doing so would require determination that it was "good" race-based social norm that justified departure from text of statute).

It may be, as Defendants assert, that further development of the record reveals that the Union reasonably determined that Plaintiff's claim lacked merit and/or that its decision not to arbitrate its claim was based on legitimate union objectives. However, taking Plaintiff's allegations as true, and drawing all reasonable inferences in his favor, the Court cannot say at this early stage of the proceeding that Plaintiff's claim that the Union acted discriminatorily in deciding not to take his grievance to arbitration is implausible.

"Establishing that the union's actions were sufficiently arbitrary, discriminatory or in bad faith, is only the first step toward proving a fair representation claim." Plaintiff also must demonstrate a causal connection between the union's wrongful conduct and his injury. Plaintiff alleges that, but for the Union's refusal the arbitrate Plaintiff's grievance, Plaintiff would have been restored to work and that the Union's breach caused him damages. These allegations are sufficient to survive a motion to dismiss….

Defendants also argue that Plaintiff fails to plausibly allege that Verizon breached the CBA, such that his hybrid § 301/duty of fair representation claim should be dismissed. Plaintiff alleges that Verizon breached the CBA by terminating his employment without cause because he did not violate Verizon's Code of Conduct. Verizon argues that Plaintiff admits to uttering a comment that "undoubtedly violated Verizon's zero-tolerance discrimination and harassment policy and provided sufficient 'cause' grounds for the company to terminate Plaintiff's employment." However, drawing all reasonable inferences in Plaintiff's favor, Plaintiff plausibly alleges that he did not violate the Code of Conduct and therefore, that his termination was without cause and constituted a breach of the CBA.

Corey Scott Stark represents plaintiff.