Court: Union’s Decision Not to Pursue Arbitration Not Shown as Being “Because of” Disability (Sleep Apnea)

In Whitehurst v. Staten Island University Hospital et al, , 18-cv-1090, 2018 WL 2744710 (E.D.N.Y. June 6, 2018), the court, inter alia, denied plaintiff’s motion to remand her case back to state court.

In evaluating plaintiff’s claims of disability discrimination against the Union, the court explained:

To make out a claim under either the NYCHRL or the NYCHRL, Whitehurst must show that the defendants discriminated against her “because of” a qualifying disability. N.Y. Exec. Law § 296(1)(a), (c); N.Y. Admin. Code § 807(1)(a), (c); Spiegel v. Schulmann, 604 F.3d 72, 80, 82 (2d Cir. 2010). Thus, the factual allegations of her complaint must provide at least “plausible support to a minimal inference of discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015).4

*6 Here, however, even viewed in the light most favorable to the plaintiff, the factual allegations of the complaint do not support the notion that 1199SEIU discriminated against Ms. Whitehurst because of her disability. Plaintiff argues that “SEIU engaged in disability discrimination … by failing to take the matter to arbitration notwithstanding its full understanding that Plaintiff was disabled.” Pl.’s Reply Br. at 1. But that the union was aware of Whitehurst’s sleep apnea does not entail that it acted—or failed to act—on that basis. On the contrary, the factual allegations of the complaint provide no reason to believe that 1199SEIU’s decision not to pursue arbitration was motivated in any way by her disability.

The court concluded that “if the complaint states a plausible claim for relief against 1199SEIU at all, it states a claim for breach of the duty of fair representation”, which “arises under federal law.”

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