United States District Court, E.D. New York
December 21, 2004.
HUGH PAYNE, Plaintiff,
MTA NEW YORK CITY TRANSIT AUTHORITY, Defendants.
The opinion of the court was delivered by: NINA GERSHON, District Judge
OPINION AND ORDER
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. Dacon, 759 F.2d 989, 998 (2d
Cir. 1985). Thus, summary judgment "is appropriate even in
discrimination cases" when the standards of Rule 56 have been
met. Weinstock, 224 F.3d at 41.
II. Procedural Requirements of Title VII/Hostile Work
As a pre-requisite to filing a civil action, Title VII requires
an individual seeking relief for employment discrimination to
file a charge with the EEOC. 42 U.S.C. § 2000e-5(f)(1). In
jurisdictions, such as this one, in which there exists an agency
charged with enforcing state or local prohibitions against
employment discrimination, the statute provides a 300 day
limitations period for filing such charge.
42 U.S.C. § 2000e-5(e)(1). Allegations of discrete acts of discrimination
that occurred prior to the 300 day period are time-barred, even
if related to acts that occurred within the 300 day period.
National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002). Allegations of a hostile work environment, however, will
not be time-barred so long as all acts that constitute the claim
are part of the same unlawful employment practice and at least
one act falls within the time period. Morgan, 536 U.S. at 122.
Here, Payne filed his EEOC charge on December 7, 1998, so the 300
day period extends backward in time to February 11, 1998, two
days prior to Payne's car accident. In response to the NYCTA's motion for summary judgment, Payne
argues for the first time that he was subjected to a hostile work
environment. Even if Payne's hostile work environment claim were
properly exhausted, which it does not appear to be, and he were
allowed to amend the complaint to add it, the claim would have to
be dismissed. To survive a motion for summary judgment, a
plaintiff claiming to be the victim of a hostile work environment
must elicit evidence from which a reasonable trier of fact could
conclude, inter alia, that the workplace was permeated with
discriminatory intimidation that was sufficiently severe or
pervasive to alter the conditions of plaintiff's work
environment. Mack v. Otis Elevator Co., 326 F.3d 116, 122 (2d
Cir. 2003). In determining whether the workplace was permeated
with the requisite discriminatory intimidation, a court must look
to all of the circumstances, including the frequency of the
discriminatory conduct; its severity; whether it was physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interfered with an employee's work
performance. Morgan, 536 U.S. at 116; Harris v. Forklift
Systems, Inc., 510 U.S. 17, 23 (1993). Conduct that is not
severe or pervasive enough to create an objectively hostile or
abusive work environment an environment that a reasonable
person would find hostile or abusive is beyond Title VII's
purview. Harris, 510 U.S. at 21.
In Harris, the Supreme Court found that a hostile work
environment existed where the plaintiff's supervisor frequently
insulted her because of her gender, made her the target of
unwanted sexual innuendo, suggested that she accompany him to the
Holiday Inn to negotiate her raise, asked her and other female
employees to get coins from his front pants pocket, and threw
objects on the ground in front of her and other women, then asked
them to pick the objects up. 510 U.S. at 19. In Morgan, the
Court upheld a finding that an actionable hostile work
environment claim existed where the plaintiff alleged that discriminatory acts occurred with
relative frequency and were perpetrated by the same set of
managers, and presented evidence from a number of other employees
that managers made racial jokes, performed racially derogatory
acts, made negative comments regarding the capacity of blacks to
be supervisors, and used various racial epithets.
536 U.S. at 121.
Here, Payne argues that the following conduct created a hostile
work environment: During the summer of 1996, he received a
promotion to AVP for Administration & Budget without a
corresponding pay raise. Prior to May 1997, when Lowe was the
Vice President for HR, he was questioned and criticized at staff
meetings to a greater degree than white counterparts. Following
the appointment of Hyland to Vice President in May 1997, a
department-wide reorganization took place that led to a reduction
in Payne's title and a decrease in his responsibilities and
staff. In September 1998, Payne was reassigned within his
department, made to report to a former subordinate, relocate his
office, pack his own file cabinet, and turn in his beeper. In
addition, Payne claims that special projects were offered to him
on a conditional basis only, whereas they were offered to his
white colleagues on an unconditional basis.
Even if Payne could demonstrate that this conduct was racially
motivated, it is neither severe nor pervasive enough to create a
hostile work environment. The conduct described by Payne occurred
intermittently over a period of years, involving different
managers at different times. When questioned at his deposition,
Payne was unable to offer any specific details about the
criticism he complains occurred at staff meetings. He does not
submit testimony from other NYCTA employees to support his
claims. Notably, Payne testified that no one in the office ever
made racially offensive remarks in his presence, and he had no
knowledge of any such remarks having been made outside his
presence. Payne Dep. IV at 24. While this is not dispositive of
the existence of a racially hostile work environment, it is one of the circumstances that must factor
into the court's analysis. Overall, Payne has failed to
demonstrate that a pervasive environment of racial hostility
existed at the NYCTA during his tenure there. The circumstances
he describes are not analogous to those in Harris and Morgan.
Payne's claims are best characterized as discrete instances of
alleged discriminatory acts, each to be judged independently.
Accordingly, Payne's hostile work environment claim is
rejected. In the absence of such claim, allegations concerning
conduct that occurred prior to February 11, 1998 are time-barred
under Morgan. As a result, the NYCTA's motion for summary
judgment is granted with respect to these claims.
III. Discrimination Claims
A. McDonnell-Douglas Framework for Analysis
Title VII provides that it shall be "an unlawful employment
practice" for an employer "to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against
any individual with respect to his 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). Under Title VII,
claims of discrimination are analyzed using the burden-shifting
framework set forth in McDonnell-Douglas Corp. v. Green,
411 U.S. 792 (1973). Initially, the plaintiff must establish a prima facie
case of discrimination. Id. at 802. To do this, the plaintiff
must demonstrate that (1) plaintiff belongs to a protected class,
(2) plaintiff was qualified to perform the duties of the job at
issue, (3) plaintiff suffered an adverse employment action, and
(4) the circumstances surrounding that action permit an inference
of discrimination. Williams v. R.H. Donnelley, Corp.,
368 F.3d 123, 126 (2d Cir. 2004). The plaintiff's burden of establishing a
prima facie case is de minimis. Abdu-Brisson v. Delta Air Lines,
Inc., 239 F.3d 456, 467 (2d Cir. 2001); accord id. Once a
prima facie case of discrimination has been established, the
employer must articulate a legitimate, non-discriminatory reason
for having taken the action of which the plaintiff complains.
McDonnell-Douglas Corp, 411 U.S. at 802-03. If the employer
does this, the burden shifts back to the plaintiff to prove that
the allegedly legitimate reason is merely a pretext for
discrimination. Id. at 804. "A reason cannot be proved to be a
`pretext for discrimination' unless it is shown both that the
reason was false, and that discrimination was the real reason."
St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993)
(citation omitted); accord Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 146 (2000).
B. Adverse Employment Actions Alleged by Payne
Payne claims that he experienced two adverse employment
actions, motivated by racial discrimination, subsequent to
February 11, 1998. The first of these is his reassignment within
the HR department in September 1998. The second is the negative
review that he received in March 1999. The court will address
each of these separately.
1. Reassignment in September 1998
Payne argues that the staff reorganization undertaken by
Williams in September 1998, which resulted in a change of his job
responsibilities and supervisor, was motivated by an intent to
discriminate against him because of his race. Payne asserts that
Hyland and Williams conspired over a period of time to humiliate
him and remove him from his position at the NYCTA. Concerning the
September 1998 reassignment, Payne testified, "That was part of
the plan to remove me from my position and I feel the reason it was done because I was black."
Payne Dep. IV at 44-45.
In response, the NYCTA submits the testimony of Williams to
establish a legitimate, nondiscriminatory reason for Payne's
reassignment. Williams asserts that, in her view, Payne's
performance declined in 1998. She attributes the decline to the
fact that she "stopped coaching him" and "left him on his own to
deliver." Williams Dep. at 45. She said that when she worked
under Lowe and Teggatz, she had time to work with Payne
one-on-one on all of his assignments. After Hyland took over,
however, she had to devote more time to her own job tasks.
Williams testified that:
[B]oth Liz [Lowe] and Chuck [Teggatz] knew my track
record. They knew what I was capable of. I could
really carry the load for Hugh and continue that
coaching that both Chuck and Liz supported. Then my
new boss [Hyland] did not know me and I had to
deliver and show him that I was capable of leading
and managing and therefore I could not carry Hugh. I
actually had to cease the coaching and the training
and let him begin to work on his own as he should
have been doing all along, and he was left to do
that. He had difficulty demonstrating and producing
the type of leadership for that unit. You know, in
problem solving areas and in the budget areas.
Without that one-on-one coaching he just was not able
to do it or he didn't do it." Id. at 46.
While Payne was out of the office following his car accident,
Williams assigned his job tasks to others out of necessity; in
particular, she assigned his budget tasks to the Strategic
Planning Unit. She found that the members of this unit performed
those tasks better than Payne had. Upon Payne's return to work in
April 1998, she did not return the budget tasks to him because
she "no longer had confidence in his ability to effectively
control and actively report on budget issues." Williams Reply
Aff. ¶ 5. Instead, she offered him alternative positions in the
department, but Payne, who perceived these positions as "special
projects," declined to accept them unless he could maintain
responsibility for the budget. Payne Dep. IV at 41-44; Williams
Dep. at 24-26. Finally, Williams reassigned him to the facilities
position without his consent, directing him to report to James. Payne offers no particularized evidence to rebut defendant's
proffered explanation and demonstrate that racial discrimination
was the real motive for his reassignment.*fn1
offers no evidence to contest the factual assertion that members
of the Strategic Planning Unit did a better job with the budget
than he did. Nor does he contest the assertion that Williams
"carried" him prior to Hyland's arrival. Moreover, Payne does not
address the fact that both Williams, who made the decision to
reassign him, and James, who was promoted above him, are black.
Under McDonnell-Douglas, Payne bears the ultimate burden of
proving that his reassignment was the result of racial
discrimination. The only admissible evidence that he has
submitted is his own unsubstantiated, subjective belief, embodied
in his deposition testimony, that white and black colleagues at
the NYCTA conspired to humiliate him and remove him from his
position because of his race. No reasonable jury could conclude,
based on that evidence alone, that he has carried his burden.
Accordingly, the NYCTA's motion for summary judgment is granted
with respect to this claim.
2. Negative Review in March 1999
The HR department conducted employee reviews of its managers on
a periodic basis. The review forms listed a series of goals and
skills e.g., "results management," "organizing and planning
skills," "leadership skills" each followed by a rating and an
explanation of the rating. An "overall rating" was also provided.
Although the forms were modified over time, the rating system did not change during the time period relevant to this case.
Ratings were given on a four point scale: A rating of "Excellent"
indicated that "[p]erformance consistently exceeds expected
requirements. Manager tackles complex goals and is generally
recognize[d] as an important contributor and leader within the
organization." A rating of "Good" indicated that "[p]erformance
is within expected levels of performance requirements,
individual's goals are met and may occasionally be exceeded, and
consistent good performance is relied upon." A rating of
"Marginal" indicated that "[p]erformance is somewhat below job
requirements in at least one or two areas. Manager needs to
significantly improve in these areas in order to be considered
Good." A rating of "Poor" indicated that "[p]erformance is
significantly below job requirements. Manager is consistently not
meeting job improvement expectations and higher levels of
performance are needed to achieve a Marginal [level] of
Five of Payne's employee reviews are in the record. A review by
Teggatz dated December 13, 1993, for the period October 9,
1992-October 9, 1993, gives Payne mostly Excellent ratings and
some Good ratings. The overall rating is Excellent. A review by
Teggatz dated August 12, 1996, for the period June 15, 1994-June
15, 1996, gives Payne mostly Good ratings and some Excellent
ratings. The overall rating is Good. A review by Teggatz dated
October 30, 1997, for the period June 1996-June 1997, gives Payne
mostly Good ratings and some Excellent ratings. The overall
rating is Good. A review by Williams dated March 31, 1998, for
the period June 15, 1997-December 31, 1997, gives Payne all Good
ratings. The overall rating is Good. A review by Williams dated
March 18, 1999, for the period 1998, gives Payne mostly Good
ratings and some Marginal ratings. The overall rating is Good.
Payne argues that the marginal ratings he received, for the
first time, in the March 18, 1999 review were motivated by racial discrimination. In response,
Williams asserts that the March 18, 1999 review reflected the
poor performance in 1998 that led to Payne's reassignment. As
discussed supra, Williams testified that after she ceased
working one-on-one with Payne, his job performance declined, and
she lost confidence in him. In addition, following his injury,
Payne became uncooperative and was frequently absent from work
without official leave.
Again, Payne offers no specific facts to rebut Williams'
assertions. He submits no testimony or documentary evidence
concerning his job performance during the review period. Although
he attempts to rebut the claim that he was absent without
official leave with testimony that he submitted the paperwork
necessary to excuse his absence, he does not provide any specific
details about what documents he submitted, when he submitted
them, or to whom he submitted them, and does not provide any
records to substantiate his assertions.*fn2 Since Payne has
failed to come forward with specific facts showing that there is
a genuine issue for trial, as required by Rule 56(e), and has
failed to meet his burden of proof under McDonnell-Douglas, the
NYCTA's motion for summary judgment is granted with respect to
this claim. IV. Retaliation Claim
Payne claims that the March 18, 1999 review also constituted
retaliation for his EEOC charge, filed on December 7, 1998. Title
VII provides that "[i]t shall be an unlawful employment practice
for an employer to discriminate against any of his employees . . .
because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter."
42 U.S.C. § 2000e-3(a). Like claims of discrimination, claims of
retaliation are analyzed using the McDonnell-Douglas
burden-shifting framework. To establish a prima facie case of
retaliation, a plaintiff must demonstrate that (1) plaintiff was
engaged in an activity protected under Title VII, (2) the
employer was aware of plaintiff's participation in the protected
activity, (3) the employer took adverse action against plaintiff,
and (4) a causal connection existed between the plaintiff's
protected activity and the adverse action taken by the employer.
Mack, 326 F.3d at 129.
To meet his burden of proof, Payne relies solely on the timing
of the review in relation to the filing of the EEOC charge:
Before filing the charge, he never received a marginal rating;
three months after filing the charge, he received several
marginal ratings. But Payne's argument fails to take into account
that his reviews indicate a steady decline in performance over
time, from mostly Excellents and some Goods, to mostly Goods and
some Excellents, to only Goods, to mostly Goods and some
Marginals. Moreover, Payne fails to submit any particularized
evidence in support of his retaliation claim. In light of all the
facts and circumstances of this case, documented in the record,
no reasonable jury could conclude, based on the timing of the
review alone, that a causal connection existed between Payne's EEOC charge and the March 18, 1999
review.*fn3 Accordingly, Payne has failed to establish a
prima facie case of retaliation, and the NYCTA's motion for
summary judgment is granted with respect to this claim.
V. State and Local Law Claims
Since claims brought under the State HRL and City HRL are
analyzed under the same substantive standards as claims brought
under Title VII, summary judgment is granted in favor of
defendant with respect to Payne's state and local law claims, as
well. See Mack, 326 F.3d at 122 n. 2; Abdu-Brisson,
239 F.3d at 466.
For the reasons set forth above, defendant's motion for summary
judgment is granted in its entirety. The Clerk of Court is
directed to enter judgment for the defendant.