Jeffrey Lax, et al., respondents, v. City University of New York, et al., defendants, Professional Staff Congress, et al., appellants. (2026)

Argued—October 23, 2025

DECISION & ORDER

Colleran O'Hara & Mills LLP, Woodbury, N.Y. (Michael D. Bosso and Patricia L. Boland of counsel), for amicus curiae New York City Central Labor Council, AFL–CIO.

W/

In an action, inter alia, to recover damages for hostile work environment and retaliation, the defendants Professional Staff Congress and Barbara Bowen appeal from an order of the Supreme Court, Kings County (Gina Abadi, J.), dated August 11, 2023.  The order, insofar as appealed from, denied the motion of the defendants Professional Staff Congress and Barbara Bowen pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants Professional Staff Congress and Barbara Bowen pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them is granted.

In February 2021, the plaintiffs commenced this action against, among others, the defendant Professional Staff Congress (hereinafter the union), the union representing the plaintiffs in their capacity as employees of Kingsborough Community College at the defendant City University of New York (hereinafter CUNY), and the defendant Barbara Bowen, the president of the union (hereinafter together with the union, the union defendants), inter alia, to recover damages for religious discrimination.  The plaintiffs alleged, among other things, that their employer, CUNY, certain individual coworkers, and the union defendants, engaged in discrimination against them in the workplace on the basis of the plaintiffs' religion.

The union defendants moved pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against them on the ground, inter alia, that hostile work environment claims can only by made against an employer.  The plaintiffs opposed.  In an order dated August 11, 2023, the Supreme Court, among other things, denied the union defendants' motion.

Generally, on a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is afforded a liberal construction, the allegations are accepted as true, the plaintiff is accorded the benefit of every favorable inference, and the court determines whether the facts as alleged fit within any cognizable legal theory (see Connolly v. Long Is. Power Auth., 30 NY3d 719, 728;  Leon v. Martinez, 84 N.Y.2d 83, 87–88).  “When evidentiary material is considered, the criterion is whether the [plaintiff] has a cause of action, not whether [the plaintiff] has stated one, and, unless it has been shown that a material fact as claimed by the [plaintiff] to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, ․ dismissal should not eventuate” (Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275;  see Leon v. Martinez, 84 N.Y.2d at 88).

Title VII of the Civil Rights Act of 1964 includes union anti-discrimination language in § 703(c)(1) of the Act, making it unlawful for a labor organization “to exclude or to expel from its membership, or otherwise to discriminate against, any individual” based on a protected characteristic (see 42 USC § 2000e–2[c][1] ).  The New York State Human Rights Law (hereinafter the NYS Human Rights Law) and the New York City Human Rights Law (hereinafter the NYC Human Rights Law) contain similar union anti-discrimination provisions (see Executive Law § 296[1][c] [unlawful for union to “to exclude or to expel from its membership such individual or to discriminate in any way against any of its members or against any employer or any individual employed by an employer”];  Administrative Code of City of New York § 8–107[1][c] [unlawful for union to “to exclude or to expel from its membership such person, to represent that membership is not available when it is in fact available, or to discriminate in any way against any of its members or against any employer or any person employed by an employer”] ).

Since a work environment is generally controlled by the employer, labor unions have “no affirmative duty” to prevent harassment or discrimination within the confines of the workplace (see Langford v International Union of Operating Engrs., Local 30, 765 F Supp 2d 486, 499 [SD NY] ).  A union's obligation to not discriminate arises only when the union performs an agency function in a representational capacity (see E.E.O.C. v Pipefitters Assn. Local Union 597, 334 F 3d 656, 659 [7th Cir];  Yarde v. Good Samaritan Hosp., 360 F Supp 2d 552, 565–566 [SD NY] ).  A union can only be liable pursuant to Title VII for situations in which the union is responsible for discrimination against or creating a hostile environment for a union member because of the member's protected characteristic (see Scott v City of New York Dept. of Correction, 641 F Supp 2d 211, 224–225 [SD NY], affd 445 Fed Appx. 389 [2d Cir] ).

Under Title VII, the NYS Human Rights Law, and the NYC Human Rights Law, a plaintiff suing a union for discrimination must show:  “(1) [that] the Union breached its duty of fair representation to plaintiff;  and (2) that the Union's conduct was motivated by animus toward the plaintiff's protected status” (Grandy v Manhattan and Bronx Surface Transit Operating Auth., 2018 WL 4625768, *13, 2018 U.S. Dist LEXIS 165520, *27–28 [SD NY, No. 16–CV–6278 (VEC) ] [internal quotation marks omitted];  see Rosenblum v Board of Educ. Great Neck Union Free Sch. Dist., 231 AD3d 881, 884).

Pursuant to Title VII, a union may not “cause or attempt to cause an employer to discriminate against an individual in violation of this section” (42 USC § 2000e–2[c][3] ).  To prove a claim for hostile work environment under this theory, a plaintiff must show (1) the existence of a hostile work environment, (2) that a union representative caused or attempted to cause the hostile work environment, and (3) that the representative's conduct may properly be imputed to the union (see Grandy v Manhattan & Bronx Surface Transit Operating Auth., 2018 WL 4625768, *21–22, 2018 U.S. Dist LEXIS 165520, *47–48).

“In order for a union representative's role in causing or attempting to cause a hostile work environment to be properly imputed to a union, a plaintiff must show not only that the union had actual or imputed knowledge of the improper conduct, but also that the union representative's conduct related to union activity and that therefore, in acting in such a manner, the representative breached the duty of fair representation” (Maron v. Legal Aid Society, 605 F Supp 3d 547, 567–568 [SD NY] [internal quotation marks omitted] ).  In order for the union to be liable for the alleged acts of union representative in creating a hostile work environment, a plaintiff must demonstrate that the defendant breached the duty of fair representation and that breach by a union representative must relate to a union activity (see id.;  Grandy v Manhattan and Bronx Surface Transit Operating Auth., 2018 WL 4625768, *24, 2018 U.S. Dist LEXIS 165520, *53).

Here, there were no allegations in the complaint that any of the alleged discriminatory acts were undertaken by union representatives acting on behalf of the union or that any of the alleged acts were related to union activity, and no allegations that the union breached its duty of fair representation.  Accordingly, the Supreme Court should have granted that branch of the motion of the union defendants which was pursuant to CPLR 3211(a)(7) to dismiss the first and third causes of action, alleging hostile work environment, insofar as asserted against them.

“To make out a prima facie case of retaliation by a union [pursuant to Title VII], a plaintiff must show that (1) [the plaintiff] was engaged in an activity protected under Title VII and known to the union;  (2) [the plaintiff] suffered adverse union action;  and (3) there was a causal connection between the protected activity and the union's actions” (Agosto v Correctional Officers Benevolent Assn., 107 F Supp 2d 294, 309 [SD NY];  see Yerdon v. Henry, 91 F3d 370, 377 [2d Cir] ).  “The term ‘protected activity’ refers to action taken to protest or oppose statutorily prohibited discrimination” (Agosto v Correctional Officers Benevolent Assn., 107 F Supp 2d at 309, quoting Cruz v. Coach Stores, Inc., 202 F 3d 560, 566 [2d Cir] ).  An adverse action by a union “is one that affects the terms, privileges, duration, or conditions of employment” (Agosto v Correctional Officers Benevolent Assn., 107 F Supp 2d at 309 [internal quotation marks omitted] ).

Here, the plaintiffs failed to sufficiently allege a cause of action to recover damages for retaliation against the union defendants.  The plaintiffs failed to allege that the plaintiffs Rina Yarmish, Michelle Davidowitz, and Susan Aranoff engaged in any protected activity (see Borawski v. Abulafina, 140 AD3d 817, 818) and, with respect to the plaintiff Michael Goldstein, the plaintiffs failed to allege that he suffered any adverse action or maltreatment from the union or on behalf of the union (see Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 313).  Additionally, although the plaintiffs alleged that the plaintiff Jeffrey Lax engaged in protected activity, there is no allegation that his complaints were made directly to the union or that he was subjected to an adverse action by the union (see id.).

Accordingly, the Supreme Court also should have granted that branch of the motion of the union defendants which was pursuant to CPLR 3211(a)(7) to dismiss the causes of action alleging retaliation insofar as asserted against them.

DUFFY, J.P., DOWLING, HOM and QUIRK, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court