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August 24, 1999


The opinion of the court was delivered by: Sifton, Chief Judge.


Plaintiff Sydell Ralkin brings this action against the New York City Transit Authority (the "NYCTA") pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967, as amended (the "ADEA"), 29 U.S.C. § 621 et seq., and the Civil Rights Act of 1866, as amended, 42 U.S.C. § 1981,*fn1 alleging employment discrimination on the basis of her race, religion, and age. Defendant NYCTA now moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the complaint.

For the reasons stated below, defendant's motion is granted, and the complaint is dismissed.


The following facts are taken from the complaint, the affidavits and accompanying exhibits submitted in support of the instant motion, and the parties' statements pursuant to Rule 56.1 of the Local Civil Rules of this Court. Any disputes of material fact are noted.

The NYCTA is a public benefit corporation established pursuant to New York Public Authorities Law §§ 1201 et seq. for the purpose of operating transit facilities in New York City.

On March 6, 1995, plaintiff Sydell Ralkin, a Caucasian, Jewish woman, began working at the NYCTA as a Computer Specialist, Level II, on a provisional basis in the NYCTA's Automated Fare Collection Systems ("AFC Systems") division. Plaintiff was terminated from such provisional employment on September 1, 1995. At the time of both her hiring and firing, plaintiff was fifty-seven years old.

Before she was hired by the NYCTA, Robert Otero, the then-acting director of AFC Systems, screened plaintiffs application and interviewed her to determine her technical abilities. After concluding that she satisfied the requirements for the position, Otero passed her application on to supervisors in the particular area for which she was being recruited without any recommendation as to a hiring decision. (Pl.'s 56.1 Stat., Exs. A, D; Def.'s Reply Aff., Ex. 1.) As part of the interview process, plaintiff also was interviewed by Helene Licursi, the then-Deputy Director of AFC Systems, and two Computer Specialists, Level II. (Pl.'s 56.1 Stat. at ¶ 2; Def.'s Reply Aff., Ex. 2.) At her deposition, Licursi testified that she was the manager who recommended that plaintiff be hired for the position. (Def.'s Reply Aff., Ex. 2.)

In support of its motion for summary judgment, defendant submits several written evaluations of plaintiffs job performance which were provided to Otero by Licursi and various other NYCTA employees. While plaintiff disputes the fairness and propriety of these evaluations,*fn2 she does not dispute that they were provided to Otero.

On March 8, 1995, Helene Licursi gave plaintiff her first assignment — the development of a report on Surface Ridership Reporting Subsystem User Requirements, which would eventually be submitted to the Office of Management and Budget. In a memorandum dated June 14, 1995, Licursi informed Otero that plaintiffs performance on the assignment had been unsatisfactory and formally requested his approval to terminate plaintiffs provisional employment. In the memorandum, Licursi states that plaintiff's initial and final drafts were unsatisfactory for a variety of reasons. Specifically, Licursi found plaintiff's final draft too long, overdue, and incomplete. Licursi further states that she found plaintiffs performance unsatisfactory because, among other things, she was not focused, had difficulty taking directions and insisted upon doing things her way, could not prioritize her daily tasks, was defensive and took suggestions as criticism, and required extensive monitoring to complete her assignment. (Def.'s 56.1 Stat., Ex. 3.)

In her first three months of employment, plaintiff also worked on an assignment with Martin Walker, a Caucasian, non-Jewish male in his thirties, who was employed by the NYCTA as a Computer Specialist, Level III. In a memorandum dated June 30, 1995, written in response to a request from Otero, Walker provides Otero with an unsatisfactory evaluation of plaintiffs performance on that assignment. Walker states that plaintiffs performance was below average for an employee of her grade, that she did not demonstrate an ability to implement technical solutions with minimal supervision, that her communication skills were poor, that she required multiple, detailed directions before she could demonstrate an understanding of an assignment, and that she was overly defensive before and during reviews of her work, making it difficult to give her direction.*fn3 (Def.'s 56.1 Stat., Ex. 4.)

On July 5, 1995, Otero issued a written official warning notice to plaintiff, which stated: "Based on performance ratings that I have received on your work, I am officially giving you notice that if your work does not improve, I will terminate your services with New York City Transit." The notice bears Otero's signed initials and was signed by plaintiff on July 5, 1995 as received, and by Licursi on the same date as witnessed. (Def.'s 56.1 Stat., Ex. 1.) In a memorandum to files also dated July 5, 1995, Otero states that plaintiff was orally advised of the following when given her official warning notice: (1) that she must listen to her manager and follow his or her instructions and that she must not modify any task without first obtaining her manager's clearance; (2) that she must not be overly defensive; (3) that she must complete her assignments on time and, in order to accomplish this, must insure that she understands all directions given to her; (4) and that Otero could be approached if she had further difficulties with her manager. (Def.'s 56.1 Stat., Ex. 5.) Plaintiff concedes that she received the official warning notice from Otero but contends that the notice was improperly based on unfair evaluations of her performance and that it was provided to her without notice, an opportunity to respond, or further elaboration on how her work could improve. (Pl.'s 56.1 Stat. at ¶ 4.)

At an unspecified point during her employment at the NYCTA, plaintiff performed an assignment under the supervision of Soossan Salmassi. In a memorandum to Otero dated August 4, 1995, written pursuant to an earlier conversation with Otero, Salmassi provides an unsatisfactory evaluation of plaintiffs performance "during the short period she worked" for Salmassi. In the memorandum, Salmassi states that plaintiff did not complete the assignment by the deadline she was given and did not perform the assignment correctly. Salmassi further states that she was forced to complete the assignment herself due to plaintiffs unsatisfactory work. (Def.'s 56.1 Stat., Ex. 6.)

In a memorandum dated August 30, 1995, Licursi provided Otero with a second negative evaluation of plaintiffs performance and recommended that plaintiffs provisional employment be terminated because her work had not improved since she was given the official warning notice on July 5, 1995. Licursi informed Otero that plaintiffs performance on an assignment to eliminate incomplete batches of unused farecards from the NYCTA's farecard batch record reporting system had been unsatisfactory because she failed to follow instructions, did not meet deadlines, was unable to perform work appropriate for her title, and, when she was able to complete an assignment, submitted poor work. (Def. 56.1 Stat., Ex. 7.) Plaintiff disputes Licursi's account of her performance on this assignment. (Pl.'s 56.1 Stat. at ¶¶ 12-14.)

By memorandum dated September 1, 1995, Licursi informed plaintiff that her provisional appointment with the NYCTA as a Computer Specialist, Level II, was terminated, effective the close of business on September 1, 1995. While a copy of the memorandum was sent to Otero, it is unclear whether Licursi sought Otero's approval before terminating plaintiff. (Def.'s 56.1 Stat., Ex. 2.)

On December 4, 1995, plaintiff filed a complaint with the Equal Employment Opportunity Commission (the "EEOC"), alleging discrimination on the basis of her race, religion, and age. On September 4, 1996, the EEOC dismissed plaintiff's complaint and issued a right-to-sue letter, which plaintiff did not receive because it was mailed to an out-of-date address. On March 4, 1997, the EEOC mailed a second right-to-sue letter to plaintiff at her correct address. On June 3, 1997, plaintiff commenced this action, seeking declaratory judgment, back pay, liquidated damages, front pay, fringe benefits and wages, attorneys fees and costs, and compensatory damages, as well as a permanent injunction restraining defendant from continuing its allegedly discriminatory practices and policies.

In the complaint, plaintiff alleges that the NYCTA engaged in unlawful employment practices in violation of Title VII, the ADEA, and § 1981 by discriminating against her on the basis of her race, religion, and age. Specifically, plaintiff alleges that defendant discharged her without justification because she was Caucasian, Jewish, and over fifty-years old and retained a significantly younger, less qualified employee in her position.*fn4 Plaintiff further alleges that defendant treated her differently than other employees who were not ...

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