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:
