The opinion of the court was delivered by: Trager, J
Pro se plaintiff Makeba Carpenter ("plaintiff") brings this action for race discrimination pursuant to Title VII of the Civil Rights Act of 1964.*fn1 Plaintiff, a black woman, claims that she was dismissed from her probationary employment as a bus driver because of her race. Defendants, New York City Transit Authority ("NYCTA") and Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA"), request summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
For purposes of defendants' summary judgment motion, all of plaintiff's statements, as made in her complaint and deposition, are taken as true. Any disputed facts are viewed in the light most favorable to the plaintiff, the non-moving party. All facts are agreed upon by both parties unless otherwise noted.
MABSTOA hired plaintiff as a probationary bus driver on April 21, 2003. Decl. of Joyce Rachel Ellman ("Ellman Decl."), Ex. 1, 2. During her probationary period, on June 28, 2003, plaintiff, driving a MABSTOA bus, tried to make a right turn onto 146th Street from Adam Clayton Powell Blvd when she hit a stationary car with a driver in it. Ellman Decl., Ex. 2. After her accident, plaintiff was sent for re-training and re-testing on two separate dates. Ellman Decl., Ex. 2. Plaintiff claims that immediately after the accident she was taken for drug-testing. Ellman Decl., Ex. 6. Plaintiff failed the first retraining and re-testing on July 3, 2003. Ellman Decl., Ex. 2, 3. According to the evaluation form, the instructor failed plaintiff because she operated with a fixed stare; did not stop or yield to a fire engine exiting a firehouse; made a wide right turn into oncoming traffic; made a short right turn and ran over the curb; and did not "cover the right side" of the bus. Ellman Decl., Ex. 3.
Plaintiff does not dispute what happened during her driving test. She claims that she failed not because of the flaws the instructor noted, but because two supervisors, Mr. Williams and Mr. Howard, disliked her. On her first re-training day, July 3, 2003, plaintiff thought that one of her training supervisors, Mr. Williams, was unjustifiably rude to her and did not like her: "I'm claiming that Mr. Williams did not like me . . . I don't know why he didn't like me." Ellman Decl., Ex. 8, Carpenter Dep. ("Dep."), p. 68. Mr. Williams, who plaintiff testified she thought was black, was her instructor that entire first retraining day. Dep., p. 64. During her deposition, when asked if Mr. Williams discriminated against her in any way, plaintiff responded that he disliked her and that she did not know why. Dep., p. 68. Plaintiff testified that she thought Mr. Williams did not like her based on "his whole character, his whole disposition." Dep., p. 64. Mr. Williams did not exchange pleasantries, such as good morning or good evening, with anyone in the group. Dep., p. 64. Plaintiff took Mr. Williams' brusqueness personally and felt that it was a manifestation of his dislike for her.
Plaintiff sketches a domino-effect of dislike. Because of Mr. Williams' dislike of her, plaintiff testified, another supervisor, Mr. Howard, spoke to her inappropriately on the day of her first re-training. Dep., p. 69. Mr. Howard, who is also black, told plaintiff that he had friends at the bus depot that plaintiff was based at because he used to work there. Dep., p. 69. He told plaintiff that "[a]ll of my friends work for Manhattanville and they are going to take care of you when you get there." Dep., p. 69. This statement could be interpreted as friendly or helpful. Even Carpenter does not claim that this was a threat or discrimination, but that Mr. Howard addressed her in an inappropriate manner: "I didn't understand why Mr. Howard was addressing me like that. He didn't have no [sic] reason to talk to me like that because he didn't know me." Dep., p. 70. The first re-testing, on July 3, 2003, was the last time that plaintiff saw either Mr. Howard or Mr. Williams. Dep., p. 72.
It was because of this alleged bias against her, stemming from Mr. Williams' dislike, which was manifested by his failure to exchange pleasantries, and not because of her driving, plaintiff claims, that she failed the first re-testing.
Plaintiff's second re-testing was on July 7, 2003. On that day, plaintiff claims that she failed not because of her faulty driving, but because her evaluator, Mr. Santos, was "Spanish" and favored a "Spanish driver". Dep., p. 73-74, 88. Plaintiff described both the instructor and driver as Spanish because they spoke Spanish. When asked, she could not describe either man's ethnicity in any other way. Dep., p. 75. From the driving records submitted by defendant, the only Hispanic man in the group was Luis Taboada-Pilca. Ellman Decl., Ex. 4. It is, therefore, assumed that he is the Spanish-speaking driver to whom plaintiff was referring. Plaintiff testified that Mr. Santos favored Mr. Taboada-Pilca over the other drivers because of their common language: "I didn't appreciate how he treated -- he didn't treat everybody the same . . . He favored the Spanish man."
Dep., p. 73-74. When asked: "[I]s there any individual at the Authority who you're claiming discriminated against you based on your race?", plaintiff answered "No" and explained that she had complained because Mr. Santos did not treat everyone equally and favored Mr. Taboada-Pilca by having him drive first and immediately returning his evaluation to him. Dep., p.73-74. However, the test was not a competition; everyone, regardless of their order, could have passed.
At the beginning of the day, before the road test, plaintiff was sitting in the back of the room. Mr. Santos told her to move up in order to sit with everyone else and that no one was out to get her. Dep., p. 88. During the road test, Mr. Santos spoke Spanish to Mr. Taboada-Pilca, had him drive first and gave his evaluation back to him immediately. Dep., p. 74-75. The other drivers, however, had to wait a longer period of time before they received their evaluations. Dep., p. 74. Mr. Santos did not tell plaintiff, nor did she ask about, the results of the road test. Dep., p. 90. Otherwise, it appears that Mr. Santos treated all of the drivers equally. Mr. Santos gave all of the drivers, including plaintiff, instructions during their test and spoke to them, except for Mr. Taboada-Pilca, in English. Dep., p. 83. After her road test, plaintiff and the other drivers returned to the training center and waited two-and-a-half hours for their reports. Ellman Decl., Ex. 6 ("Pl.'s Compl."), p. 2. Mr. Taboada-Pilca, however, was released as soon as the training bus returned. Pl.'s Compl., p. 2.
Plaintiff testified that she thought that there were a total of seven bus operators and that she was the only black woman in the group being tested on July 7, 2003. Dep., p. 77. Plaintiff testified that she was one of two women in the group, but was unsure of the other woman's race. Dep., p. 76, 84. Defendants submitted evaluations of four other drivers who took the driving test on that day: Taboada-Pilca, Lucia Lewis, Thomas Mason and Patrick Roberts. Ellman Decl., Ex. 4. Attached to the evaluations of the other drivers were sheets with personal data, including ethnic group, for each. According to the personal data sheets, Taboada-Pilca was Hispanic, Lewis was black, Mason was white and Roberts was black. Ellman Decl., Ex. 4. All of them passed the driving test. Ellman Decl., Ex. 4. According to the evaluation form, the instructor failed plaintiff because she again operated with a fixed stare; did not check her right side; entered an intersection on a yellow light; and did not scan the bus's mirrors enough. Ellman Decl., Ex. 3.
Plaintiff eventually returned to Manhattanville, the depot where she had been stationed. Dep., p. 90. At Manhattanville, plaintiff was told to take two days off and call for her assignment. Pl.'s Compl., p. 3. Plaintiff called repeatedly for an assignment and, after four days, was told that she had been terminated. Pl.'s Compl., p. 3.
After being terminated from her probationary employment, plaintiff sent letters to Mayor Bloomberg and to President Bush. Pl.'s Compl., p. 3. Her letter to President Bush was forwarded to the Equal Employment Opportunity Commission ("EEOC"). Pl.'s Compl., p. 3. On March 9, 2004, plaintiff filed a charge with the EEOC against defendant NYCTA. Ellman Decl., Ex. 5. The EEOC issued a-right-to-sue letter on June 2, 2004, and plaintiff then filed a discrimination charge with either the New York State Division of Human Rights ("NYSDHR") or the New York City Commission on Human Rights ("NYCCHR"). Ellman Decl., Ex. 6, p. 4, 6. Plaintiff filed suit against the NYCTA for termination of employment and unequal terms and conditions of employment on August 16, 2004. Ellman Decl., Ex. 6. On January 11, 2005, by order of the Court, the complaint was amended to add MABSTOA as a defendant. Ellman Decl., Ex. 6. Plaintiff maintains that her probationary period was terminated because of her race, that she was treated unfairly and that NYCTA and ...