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December 21, 2004.

HUGH PAYNE, Plaintiff,

The opinion of the court was delivered by: NINA GERSHON, District Judge


Plaintiff Hugh Payne, who worked in the Human Resources ("HR") department at defendant MTA New York City Transit Authority ("NYCTA") for fifteen years, brings this action alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17 ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law §§ 290-301 ("State HRL"), and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101-8-131. ("City HRL"). Plaintiff claims that the NYCTA discriminated against him because of his race and subjected him to a hostile work environment. He further claims that he suffered retaliation after filing a charge with the Equal Employment Opportunity Commission ("EEOC"). Defendant moves for summary judgment, arguing that (1) certain claims made by plaintiff are barred because plaintiff failed to include them in a timely filed EEOC charge, (2) defendant is entitled to judgment as a matter of law on plaintiff's remaining discrimination claims, (3) defendant is entitled to judgment as a matter of law on plaintiff's retaliation claim, and (4) defendant is entitled to judgment as a matter of law on plaintiff's state and local law claims. For the reasons set forth below, defendant's motion is granted.


  The following background facts are not in dispute; additional undisputed facts are set forth infra. Payne, who identifies himself as a black male, was hired by the NYCTA as a Finance Manager in the HR department in February 1986. One year later, he was promoted to Deputy Director of Budget, and two years after that, he was promoted to Director of Budget and Administration. In that position, he reported to Charles Teggatz, Vice President for Budget and Administration. Teggatz, in turn, reported to Liz Lowe, Vice President for the entire HR department. Teggatz is white and Lowe is black. In September 1990, Payne received a 10% salary increase. In June 1992, Payne was promoted to Senior Director of Budget and Administration. He received another 10% salary increase and continued to report to Teggatz. In June 1993, June 1994, and June 1996, Payne received 4% salary increases. In July or August 1996, Payne was promoted to Assistant Vice President ("AVP") for Administration and Budget. He did not receive a salary increase at that time. He began reporting to Sandra Williams, Deputy Vice President for Employee Development and Training. Williams also reported to Lowe. Williams is black.

  During Lowe's tenure as department head, department-wide staff meetings were held on a regular basis. Attendees included Lowe; Williams; Teggatz; Robert Kayer, AVP for Occupational Health Services; Brian Semler, AVP for Field Services; Linda Feeny, AVP for Strategic Planning; and Payne. Kayer, Semler, and Feeny are white. During these meetings, Payne would be called upon routinely to make presentations concerning the budget. The presentations were typically subjected to a high level of scrutiny. Payne's colleagues would ask detailed questions and request that back-up data be provided. Members of Payne's staff were also called upon, from time to time, to make budget presentations at Lowe's staff meetings.

  In fall 1996, Lowe resigned her position, and Teggatz took over as Acting Vice President for HR. He remained in that position until May 1997, when Kevin Hyland was appointed Vice President for HR. Hyland is white. Hyland instituted a major reorganization of the HR department, which resulted in Williams' title being reduced one level to Assistant Vice President, Payne's title being reduced one level to Senior Director, and several assistant vice presidents, including Teggatz, and Kayer being transferred out of the department. Neither Williams nor Payne received a pay cut. During the tenures of Teggatz and Hyland as department head, department-wide staff meetings were not held regularly.

  On February 13, 1998, Payne was injured in a car accident. He was out of work until April 1998. In Payne's absence, Williams assigned his responsibilities to other members of her staff. Upon Payne's return to work, Williams did not return to him any responsibilities concerning the budget. Instead, she offered him the opportunity to work on an infrastructure project. Payne informed her that he could handle the project in addition to his regular workload, but Williams told him that the position would be full-time. Payne declined it. In July 1998, Williams offered Payne the opportunity to lead a special telecommunications initiative. Again, she told him that it would be a full time position and, again, he declined it. On September 28, 1998, Williams informed Payne that she was reorganizing her staff. Donna James, who formerly reported to Payne, would be promoted to head of the administrative unit. James is black. Payne would now be in charge of the facilities area and would report to James. Although Payne did not consent to these changes, they were announced at a staff meeting the following day. Payne was instructed to vacate his current office and move to a different office in the building. While packing the contents of his file cabinet, Payne reinjured his back. He was out of work until February 1999.

  On December 4, 1998, Williams contacted Payne to advise him that an independent medical examination by doctors affiliated with the workers' compensation program indicated that he would be able to return to work on December 9, 1998. On December 7, 1998, Payne filed a charge with the EEOC. Following his return to work in February 1999, Payne left early each day on instructions from his doctor. Williams directed that his time sheets indicate that he was absent without official leave ("AWOL") during these periods. In March 1999, Payne received an employee review from Williams that rated his performance in certain areas as marginal. In May 1999, James decided to reduce the number of beepers available to her unit. She instructed all personnel who reported directly to her, including Payne, to turn in their beepers. Subsequently, one beeper was assigned to the entire unit and maintained by James. Payne was required to go to her office and sign it out when he wanted to use it.

  Payne commenced this lawsuit on June 7, 1999. His complaint alleged discrimination on the bases of race, color, ethnicity and national origin in violation of Title VII, the State HRL, and the City HRL. At oral argument, he withdrew all alleged bases of discrimination other than race. His complaint also alleged retaliation in violation of Title VII and the State HRL. Since the commencement of this action, Payne has retired from the NYCTA on disability. DISCUSSION

  I. Standard for Summary Judgment

  Summary judgment shall be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The standard for granting summary judgment mirrors the standard for a directed verdict under Rule 50(a), which permits the court to grant a motion for judgment as a matter of law when "there is no legally sufficient evidentiary basis for a reasonable jury" to decide an essential issue in favor of the non-moving party. Fed.R.Civ.P. 50(a)(1); see id. at 323.

  When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Matsushita Electric Industrial Co, Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). To prevail, the non-moving party must come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); id. at 587. A complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial, and entitles the moving party to judgment as a matter of law. Celotex Corp., 477 U.S. at 323.

  In employment discrimination actions, courts are cautious about granting summary judgment when intent is at issue. This is because "a victim . . . [is] seldom able to prove his or her claim by direct evidence and is usually constrained to rely on the cumulative weight of circumstantial evidence." Rosen v. Thornburgh, 928 F.2d 528, 533 (2d Cir. 1991); accord Gallo v. Prudential Residential Services, 22 F.3d 1219 (2d Cir. 1994). Nevertheless, "the salutary purposes of summary judgement — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to . . . other areas of litigation." Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000) (quoting Meiri v. ...

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