Summary
granting defendants summary judgment on plaintiffs' § 1983 claims where plaintiffs failed to identify any unconstitutional custom or policy
Summary of this case from Stampf v. Long Island Railroad AuthorityOpinion
00 Civ. 6031 (HB)
May 7, 2002
OPINION ORDER
Plaintiffs Glenn Azon ("Azon"), a Hispanic Engineer for the defendant Long Island Rail Road ("LIRR"), and Maria Rodriguez ("Rodriguez"), a Hispanic former Assistant Conductor for the LIRR, brought separate race discrimination actions against their employers under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et seq., 42 U.S.C. § 1981, 1983, the New York State Human Rights Law, N.Y.Exec.L. § 296, et seq. and the New York City Human Rights Law, N.Y.C.AD.C. § 8-107. On December 26, 2001, I granted plaintiffs' motion to consolidate these lawsuits. The defendants move for summary judgment on all claims. For the following reasons, the defendants' motion is GRANTED, in part, and DENIED, in part.
I. BACKGROUND
Azon and Rodriguez assert a variety of claims of racial discrimination, a large part of which arise from their separate but similar encounters with their supervisor, defendant George Farrell ("Farrell").
Azon describes an incident that occurred on April 15, 1997. On that day, Farrell summoned Azon to his office after Azon's train had fallen behind schedule. Azon claims that Farrell brought him to a small room and proceeded to reprimand and threaten him by yelling and shaking his fist in his face.
Rodriguez claims that she experienced a similar incident in June, 1997, when Farrell singled her out among a group of non-Hispanic employees to inspect her time-table book. Farrell threatened to write up Rodriguez on disciplinary charges because her book was not updated. As he allegedly did with Azon, Farrell brought Rodriguez to the same dark room and yelled and threatened her, apparently bringing Rodriguez to tears. Additionally, Rodriguez asserts that Farrell in the month prior to the incident also singled her out to inspect her train schedule book and reprimanded her for inaccuracies.
While the above incidents hardly give rise to a cause of action for racial discrimination, they do form the basis for the plaintiffs' subsequent complaints in July, 1997, to the LIRR Hispanic Society ("Hispanic Society"). As a consequence of the complaints, the LIRR conducted an investigation and eventually issued a thirteen-page report that concluded that, while there was insufficient evidence to support a finding of racist behavior on the part of Farrell, his inter-personal skills needed improvement. The report was issued on June 18, 1998, to the Hispanic Society. Farrell was thereafter sent to management training and additionally received a permanent record of the incidents in his personnel file.
The plaintiffs assert that following their complaints to the Hispanic Society, the LIRR engaged in a course of retaliation that resulted in the termination of Rodriguez and the repeated denials of a promotion for Azon.
A. Rodriguez's Termination
Rodriguez's termination arose from circumstances in relation to her attempt to qualify as a Conductor in February, 1998. Pursuant to the union contract, all Assistant Conductors such as Rodriguez are required as a condition of employment to pass a series of examinations to become a Conductor. The qualification process consists of a variety of tests that are to be completed within proscribed time periods, and various rules as to how to reschedule examinations that are missed or failed. What is clear is that Rodriguez did not technically adhere to all of them, and she was fired on July 2, 1998, after she failed to timely complete the examination process. Rodriguez claims, however, that she was denied an extension to take her tests as a result of her complaints to the Hispanic Society. During the course of taking her examinations, Rodriguez had been involved in an automobile accident. The doctor prescribed codeine for her pain. Since the LIRR prohibits any employee taking a medication such as codeine from entering the premises, Rodriguez contacted her manager, defendant James Dermody ("Dermody") via the Hispanic Society to request a short delay in her examinations schedule to allow her to conclude the prescribed medication. Although the defendants now contend that any extension granted to Rodriguez would have been against the rules, it appears that at the time of her request, Dermody had offered an assurance to the Hispanic Society that Rodriguez would receive an extension as long as her medical condition was verified. (McDonough Dec. Ex. 50, Hidalgo Dep. 47:4-6). For reasons that are not apparent, however, the extension was never granted to Rodriguez. Further, in the month leading to her dismissal, Dermody sent a peculiar e-mail dated May 2, 1998, to Rich Cody, the head of the Rule's Examiner's Office, in which he inquired about both the status of Rodriguez's qualifying tests and the LIRR's investigation of Farrell. (McDonough Dec. Ex. 37). Cody responded to Dermody in a subsequent e-mail in which he noted that other employees had been afforded special consideration with respect to the examination process and suggested that Rodriguez would likely be granted an extension to take her tests. Somewhat mysteriously, Rodriguez was ultimately refused the extension without explanation and dismissed on July 2, 1998, approximately two weeks after the LIRR issued its final report to the Hispanic Society with respect to her prior allegations against Farrell.
B. Azon's Failure to Obtain Promotion
Awn claims he was repeatedly passed over for promotions for the position of Road Foreman-Engines, and denied overtime opportunities, as a consequence of his race and also in retaliation for his complaints to the Hispanic Society. In 1979, the LIRR first hired Azon as a police officer and promoted him to sergeant in 1984. In 1987, he transferred to the Transportation Department where he became an Engineer the following year. In 1995, the LIRR posted a promotional bulletin announcing an opening for Road Foreman-Engines, a job that required ten years of Transportation Department experience or "equivalent education and experience." (Azon Aff. Ex. C.). Azon, who did not have the requisite ten years of Transportation Department experience, nevertheless sought the job and inquired whether his experience as a police sergeant could constitute "equivalent" experience. Azon was told by the LIRR's Office of Diversity Management that such experience would not be considered "equivalent," and he consequently did not submit a formal application for the job. Azon asserts that the LIRR's determination was arbitrary at best. He points to and presumably will prove an instance in 1999 when a non-Hispanic employee, Michael Rowan, was considered for a Road Foreman-Engines position and was permitted to substitute his police work for the requisite experience. In fact, the 1999 job was ultimately awarded to Stephone Montgomery, a non-Hispanic employee who had been allowed to substitute his experience as a "block operator." Adding to these facts is the deposition testimony of William Jeffries ("Jeffries"), the LIRR's General Superintendent of Transportation, who participated in the determinations of the requisite experience that would be deemed "equivalent" for the purposes of job applications. Jeffries stated that he considered experience as a police sergeant "equivalent" to Transportation Experience because of its likeness to other supervisory positions, while he believed experience as a "block operator" was not. (McDonough Dec. Ex. 48, Jeffries Dep. 32:12-33:6).
In September, 1997, having completed ten years of experience in the Transportation Department, Azon formally applied for the job of Road Foreman-Engines. A satisfactory disciplinary record was also a prerequisite for the job. An applicant must have been free of disciplinary incidents for at least three years. Initially, four candidates qualified for the position, of which there were two openings. Among the four were Azon and Thomas McCaffery, a non-Hispanic who had had a disciplinary violation on his record within the previous three years. In what the LIRR explains was its desire to seek a larger pool of candidates, it reposted the job listing in October, 1997, which subsequently attracted an additional three applicants for a total of seven. One cannot be clear from the record what the basic motivation for reposting may have been and whether as contended it had a discriminatory aspect, but it does provide food for thought. According to the LIRR's hiring procedure, the qualified applicants were then to be interviewed by a panel that asked each candidate a series of pre-formulated questions. The panelists then scored the responses of the applicants and awarded the positions to the two highest scorers. After his interview, Azon rated fourth and was denied the promotion. The two highest scorers, McCaffery and Gerard Estelle, another non-Hispanic applicant, were awarded the positions.
Azon contends that the LIRR's promotion process was predetermined in that the panelists never intended to consider the merits of his application. In support of his argument Azon alleges, and an e-mail dated December 7, 1997, from the human resources department seems to support his claim, that upper management for the Transportation Department had prepared the paperwork to promote McCaffrey prior to the completion of the interviews. (McDonough Dec. Ex. 18, e-mail dated Dec. 7, 1997). Azon also challenges the subjective nature of the interview scoring. One question for instance queried "Where do you see yourself five years from now?" Estelle, who received the promotion and answered, "Trying to better myself, higher education. I love being an engineer," was awarded a score three times higher than Azon, who answered, "I hope to be one of the best at whatever I am doing at that time." Lastly, Azon suggests that if the position had not been reposted in October, 1997, he would have received one of the two promotions because he had obtained the second highest score prior to the reposting.
Subsequent to his 1997 application for the Road Foreman-Engines position, Azon was informed by the employment office that he would continue to be considered for other such promotions and did not need to file additional applications. When two positions opened up in 1999, however, Azon was never even selected for an interview. He later learned from the Transportation Department that a disciplinary action he had received in January, 1999, precluded him from being considered for the job, unlike his Caucasian colleague, McCaffrey, who was promoted in 1997.
Azon additionally claims that he was denied overtime opportunities in September, 1998, by Defendant William Gibbons, the lead Transportation Manager, who worked with Farrell and was aware of the complaints by Azon to the Hispanic Society. (McDonough Dec. Ex. 52, Farrell Dep. 49:25-50:12). Finally, Azon alleges that in the evening of September 24, 1999, he was confronted by two supervisors in the men's room who asked him if he ever had contact with Rodriguez. When Azon attempted to move past the supervisors, they allegedly attempted to block his way until he was eventually able to duck by.
As a backdrop to his claims, Azon cites LIRR employment statistics that show an absence of Hispanics in management positions, specifically in the position of Road Foreman-Engines. According to the 1997 and 1999 statistics submitted to the Court by the plaintiffs, the LIRR consistently fell short of its goals to place Hispanic workers in a majority of job categories. (McDonough Dec. Ex. 41). Additionally, the LIRR conceded, via the deposition testimony of Sandra Sperry, the head of the LIRR's Diversity Management Office, that Hispanics were comparatively rarely promoted. (McDonough Dec. Ex. 45, Sperry Dep. 165:1-11). It was only in 1999 that the LIRR appointed the first Hispanic to the position of Road Foreman-Engines.
Both Rodriguez and Azon filed charges of racial discrimination with the United States Equal Opportunity Commission in March, 1999, and August, 1998, respectively. After receiving Right to Sue letters, they filed the instant actions on August 14, 2000. The lawsuits were consolidated on December 26, 2001. Oral argument was held on the defendants' summary judgment motion on April 5, 2002.
II. DISCUSSION
A. Summary Judgment Standard
A motion for summary judgment may not be granted unless the Court determines there is no genuine issue of material fact to be tried. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-52 (1986). The moving party has the burden of demonstrating the absence of any genuine issue of material fact. See Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). A fact is material "if it might affect the outcome of the suit under the governing law," while an issue of fact is genuine "where the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Giordano v. City of New York, 20001 WL 1637383, at *5 (2d Cir. 2001). Furthermore, the court must "draw all factual inferences in favor of the party whom summary judgment is sought." Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995).
B. Hostile Work Environment
Both Azon and Rodriguez claim that the totality of circumstances in their workplace, including Farrell's reprimands in 1997, the LIRR's failure to promote Azon and failure to grant an extension to Rodriguez, and the LIRR's investigation of Farrell, created a hostile work environment actionable under Title VII.
Title VII prohibits an employer from discriminating against any individual with respect to the "compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2 (a)(1). A plaintiff who proceeds under a hostile work environment theory of liability must establish (1) "that the workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of [plaintiffs] work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Richardson v. New York State Department of Correctional Service, 180 F.3d 426, 436 (2d Cir. 1999). A hostile work environment claim "will succeed only where the conduct at issue is so severe or pervasive as to create an objectively hostile or abusive work environment, and where the victim subjectively perceives the environment to be abusive." Id. The plaintiffs' allegations fail on this account. At the very heart of their claim are their encounters with Farrell, a few isolated incidents that were hardly pervasive or severe. See, e.g., Ferris v. Delta Air Lines, Inc., 277 F.3d 128, 135 (2d Cir. 2001) (noting that a continuing pattern of hostile or abusive behavior is ordinarily required to establish a hostile environment, although a single incident — such as rape — can suffice to show sufficient egregiousness); Williams v. Westchester, 171 F.3d 98, 100 (2d Cir. 1999) ("In order to meet his burden, the plaintiff must show more than a few isolated incidents of racial enmity."). Neither plaintiff asserts that Farrell's words or actions included racial abuse. Cf. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (noting that for racially hostile work environment "there must be a steady barrage of opprobrious racial comments"). Rather, the plaintiffs concede that they first came to believe that their encounters with Farrell were racially driven only after they had a subsequent conversation with a member of the Hispanic Society who informed them that Farrell had been accused of referring to another Hispanic employee one year earlier as "Paco," Chico," and "Cisco." In this regard, the plaintiffs fail to demonstrate the subjective element to their claim, specifically, that they perceived a racial animus at the time of their encounters. See Richardson, 180 F.3d at 436 (noting objective and subjective elements are required to sustain a claim of hostile work environment); see also Kodengada v. IBM Corp., 88 F. Supp.2d 236, 242 (S.D.N.Y. 2000) (noting that a derogatory comment about another person "generally does not have the same sting" as an ethnic slur directed at plaintiff).
However, while the plaintiffs' claims of hostile work environment fail, their Title VII claims survive summary judgment under alternative theories of liability.
C. Retaliation and Failure to Promote
Title VII forbids retaliation against an employee who complains of a prohibited employment practice. 42 U.S.C. § 2000e-3 (a). In order to defeat a motion for summary judgment on a claim of retaliation, the plaintiff must first present sufficient evidence of a prima facie case that (1) he engaged in a protected activity under Title VII, (2) that the employer was aware of this activity, (3) that the employer took adverse action against the plaintiff, and (4) that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action. Cifra v. General Electric Company, 252 F.3d 205, 216 (2d Cir. 2001). "If the plaintiff meets this burden and the defendant then points to evidence of a legitimate, nonretaliatory reason for the challenged employment decision, the plaintiff must point to evidence that would be sufficient to permit a rational fact finder to conclude that the employer's explanation is merely a pretext for impermissible retaliation." Id. at 216.
Rodriguez's claim of Title VII retaliation survives. Her complaint to the Hispanic Society in relation to Farrell constituted protected activity and her ultimate dismissal from the LIRR certainly was an adverse action. The May 2, 1998, email from Dermody to Cody in which Dermody seemingly intertwines his inquiry into both the status of Rodriguez's examinations and the status of the LIRR investigation establishes at the very least the second prong of her prima facie case, and additionally suggests the causal connection required to satisfy the fourth prong. Further, the timing of Rodriguez's termination, just a few weeks after the release of the LIRR's investigation report, raises a sufficient inference of "causal connection" to carry her burden here. See Cifra, 252 F.3d at 217 (noting that causal connection may be established indirectly, for instance, by showing that the protected activity was closely followed in time by the adverse action).
While the defendants assert a nonretaliatory reason for firing Rodriguez — namely that she failed to comply with the rules — Rodriguez's assertion that other employees had previously been permitted special considerations with respect to the qualifying process — and Cody's email to Dermody that suggests the same — constitute sufficient evidence of pretext.
Azon's retaliation claims, however, do not similarly survive. While I find that Azon satisfies the first three prima facie elements, he fails on the fourth. Unlike Rodriguez, Azon can not establish any link between his complaint to the Hispanic Society and his failure to receive a promotion or overtime pay. Azon merely asserts that his complaints against Farrell were generally known around the agency, yet he testified at his deposition that he does not believe the panelists who denied him the 1997 promotion ever considered his complaint to the Hispanic Society as a factor in their determination against him. (Def. Rule 56.1 Statement, ¶ 35, Ex. 2, Azon Dep. 113:3-4). Additionally, Azon begins his tale of troubles in 1995, well before he made his complaints to the Hispanic Society. With respect to Azon's claim that he was denied overtime work in 1998 in retaliation for his complaints to the Hispanic Society, he similarly fails to show the requisite causal connection. Again, Azon merely relies on a generalized assertion that his complaints against Farrell were well-known. The incident in the men's room — the relevance of which is hardly clear — occurred a year after the time Azon alleges that his overtime opportunities were removed. It is therefore too far attenuated to establish a nexus. See, e.g., Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996) (finding that the requisite causal connection "was shown . . . by, among other things, evidence that the time between the plaintiffs initial complaint and her discharge was a mere twelve days").
Azon's claims under Title VII, however, survive under his alternate theory of failure to promote. To survive summary judgment based on a claim for alleged discriminatory failure to promote, Azon must show that (1) he was a member of a protected class; (2) he applied and was qualified for a job which the employer was seeking applicants; (3) he was rejected for the position; (4) under circumstances which give rise to an inference of unlawful discrimination. Brown v. Coach Stores, Inc. 163 F.3d 706, 709-10 (2d Cir. 1998). Once the plaintiff makes out a prima facie case, as in Title VII claims for retaliation, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment decision. Evans v. Port Authority of New York and New Jersey, 2002 WL 518640 (S.D.N.Y. April 5, 2002). The plaintiff must then show that the employer's purported legitimate reason is merely a pretext for discrimination. Id. Here, Azon's unsuccessful attempts at promotion from 1995 through 1999, when considered in light of the virtual absence of Hispanics in the position of Road Foreman-Engines, may provide the requisite inference of discrimination necessary to make out a prima facie case. See Victory v. Hewlett-Packard Company, 34 F. Supp.2d 809, 823 (E.D.N.Y. 1999) (noting that the Supreme Court has repeatedly countenanced the use of statistical evidence to support an inference of discrimination). Further, while the defendants argue that Azon was denied promotions as a result of his low scores on interviews or his disciplinary record, Azon raises a genuine issue of fact as to whether the defendants' legitimate reasons are a pretext for discrimination. Specifically, the subjective aspects of the promotion process, combined with the reposting of the 1997 job, and the seemingly inconsistent manner in which disciplinary records were evaluated, together raise credibility issues sufficient to defeat summary judgment. See Byrnie v. Town of Cromwell, Board of Education, 243 F.3d 93, 104 (2d Cir. 2001) (noting that employer's procedural irregularities in hiring may raise a question as to the good faith of the process).
Although Azon did not formally apply for the 1995 position, I find that his inquiries to the diversity office as to whether he qualified, and the response by management that he did not, is sufficient to constitute an application nevertheless, albeit not a formal one.
D. Claims Under 42 U.S.C. § 1981, 1983 and State Law Claims
The plaintiffs additionally assert claims pursuant to 42 U.S.C. § 1981, 1983 against the defendants LIRR and the Metropolitan Transportation Authority ("MTA"), which oversees the LIRR. These claims do not survive. To establish municipal liability under §§ 1981 or 1983, the plaintiff must "identify a municipal policy or custom that caused the plaintiffs injury." Bd. of City Commissioners of Bryan County v. Brown, 520 U.S. 397 (1997). A "custom" is only established, however, by the existence of unconstitutional practices "[so] persistent and widespread," and "so permanent and well settled," that it may fairly be said that a custom and usage exists "with the force of law, thereby generating municipal liability." Sorlucco v. N Y City Police Dep't., 971 F.2d 864, 870 (2d Cir. 1992). The plaintiffs simply fail to identify any such policy or practice of the defendants. The plaintiffs' assertion that there were serious lapses in the investigation of Farrell is a far cry from establishing that the LIRR systematically "ignored" the complaints of Hispanic employees, as the plaintiffs suggest. (Plts. Mem. at p. 22).
Finally, the plaintiffs' state law claims under the New York State Human Rights Law, N YExec.L. § 296, et seq., and the New York City Human Rights Law, N.Y.C.AD.C. § 8-107, may survive, but only to the same extent as their Title VII claims. See Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1177 (2d Cir. 1996) (noting that claims brought under the New York Human Rights Law are considered in tandem with plaintiffs Title VII claims).
II. CONCLUSION
While the plaintiffs have a hard row to hoe at trial, I conclude, for the foregoing reasons, that the defendants' motion must be and herewith is DENIED with respect to Rodriguez's Title VII claim for retaliation and Azon's Title VII claim for failure to promote, and their corresponding state law claims. The defendants' motion is GRANTED with respect to all other claims. Further, I dismiss this action as to the individual defendants — William Gibbons, George Farrell and James Dermody — under Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995), abrogated on other ground by, Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Trial will commence May 22, 2002. The pretrial order and any in limine motions, fully briefed, including objections to exhibits or proposed deposition transcript excerpts, with requests to charge and proposed voir dire questions, are due no later than May 14, 2002. Argument on the motions, if any, will be May 22, 2002.