The opinion of the court was delivered by: Hurley, Senior District Judge
Plaintiff Barbara Garcia Beauchat ("Plaintiff") brought the present action against Defendant Norman Y. Mineta, Secretary for the Department of Transportation ("Defendant") for violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, and the New York State Human Rights Law ("NYSHRL") § 296, claiming she was discriminated against on the basis of her gender and national origin, and for a violation of the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2615(a)(2). Defendant now moves for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56(c) on the grounds that Plaintiff has failed to make a prima facie case of discrimination under Title VII, that she has no private right of action under the FMLA, and that the NYSHRL § 296 is preempted by federal law in this instance. Plaintiff opposes the motion. For the reasons set forth herein, Defendant's motion for summary judgment is GRANTED in its entirety.
The following summary of facts is drawn from the parties' Local 56.1 statements, and the parties submissions. The facts are undisputed unless otherwise noted. Plaintiff is a Hispanic Apache female, residing in Suffolk County, New York. Defendant is the representative of the branch of the federal government that provides Plaintiff's employment.
Plaintiff worked as an "air traffic control specialist" or, at other times, an "air space management specialist" beginning in 1994. In 2000, she began her career with the United States Department of Transportation, Federal Aviation Administration ("FAA"), as an air traffic control specialist, i.e. air traffic controller in New Orleans. After nearly two years at that position, Plaintiff sought, and received a transfer to the New York area and began training at the New York Terminal Radar Approach Control (hereinafter "TRACON") facility in Westbury, New York. She is married to John Beauchat, also an air traffic controller, who transferred to the New York area with her and trained with her. Plaintiff is currently employed by the FAA as an air traffic controller at LaGuardia Tower.
When Plaintiff relocated to the New York area, her instructor at TRACON was John Maguin ("Maguin"). Maguin provided lab instruction to Plaintiff. Plaintiff alleges that he treated her different than the other students, monitored her more closely than the other students, was extremely critical of her mistakes, sometimes refused to give her help she requested, and refused her requests for leave. (See Decl. of R. Elizabeth Urena, Ex. C (hereinafter "Pl.'s Dep.") at 23.) Maguin also commented that he believed Plaintiff did not belong at TRACON. (Id. at 26.) Plaintiff complained about Maguin's actions, believing that they were motivated by his bias against either her gender and national origin (see id. at 25-26). Plaintiff asserts that her husband, a Caucasian male, was treated much better than she was, such as receiving days off when her identical requests were rejected. Plaintiff contends that because others did not agree with Maguin regarding whether Plaintiff "belonged," he was replaced by Roger Stebens ("Stebens"). (Id. at 31.) Under Stebens, Plaintiff completed the classroom phase of her training and suffered no delay in the completion thereof. (Id. at 33.)
After her classroom training was completed, Plaintiff began her on-the-job training in December 2001. She was in the on-the-job training phase until March 2002. Her training supervisor was Michael Santos ("Santos"), and her training team instructors were Richard Devivo ("Devivo"), her primary instructor, and Victor Starr ("Starr"), her secondary instructor. Plaintiff averred that Santos told her that no one wanted to train her (Pl.'s Dep. at 35-37; 50); Santos stated that he did not recall if anyone refused to provide training to her (see Decl. of R. Elizabeth Urena, Ex. C, Santos Dep. (hereinafter "Santos Dep.") at 51).
The team developed a training plan for Plaintiff, produced monthly progress reports, which summarized the daily reports of her training, and conducted a monthly skill check on a particular position. In order for Plaintiff to fully certify as an air traffic controller in the Kennedy sector, she had to certify on nine "positions." In January 2002, she was certified on the flight data position.
Plaintiff worked eight-hour days, but did not train constantly. Defendant avers that the limiting factors included the availability of instructors, possible workload, complexity of traffic, and Plaintiff's availability for being at work. (Santos Dep. at 50-51.) Plaintiff tells a somewhat different story. She alleges that the limiting factors were that her primary instructor, Devivo, was assigned to work nights while she was working days and that other air traffic controllers refused to train her. (Pl.'s 56.1 Counterstatement ¶ 33.) Defendant counters that Plaintiff, when working as a developmental, worked both day and night shifts. (Def.'s 56.1 Statement ¶¶ 35, 36 (citing Santos Dep. at 60, 64, though failing to provide copies of those pages).) During this period, Plaintiff made a number of requests for leave days, but those requests were denied.
Problems allegedly developed during Plaintiff's training with regard to her performance. Defendant contends that Santos, "who was familiar with plaintiff's training, believed there were areas of plaintiff's performance that needed improvement each month, and plaintiff did not show improvement." (Id. ¶ 38.) Defendant avers that Plaintiff had "consistent separation errors," which is to say she frequently failed to comply with FAA standards of separation to keep airplanes apart. (Id. ¶¶ 40-41.) Devivo stated that Plaintiff progressed to a certain level during her training, but then stopped progressing any further. (Id. ¶ 44.)
Plaintiff disputes this claim, contending that "[f]our (4) out of the five (5) monthly progress reports Santos completed for Plaintiff state, 'consistent training' in the departure position. . . ." (Pl.'s 56.1 Counterstatement ¶ 38.) Plaintiff also alleges that Starr informed her that "she would have fully certified as an air traffic controller in the Kennedy sector had she received 'more time' and 'consistent training.' " (Id.) Finally, Plaintiff asserts that she complained about her sporadic training schedule to Kevin Maney, an air traffic controller and union representative for the Kennedy sector. Maney replied to her complaint by saying, "If you don't like it, file an EEO -- we've been picking and choosing before you got here and we will continue to do it long after you are gone -- and if you don't like it, sue us." (Id. ¶ 38 (citing Pl.'s Dep. at 117, 135).)
At the center of the dispute regarding Plaintiff's progress and performance is an incident that occurred that the parties discuss as a "pilot deviation" or, alternatively, an "operational error." A "pilot deviation" occurs when a pilot fails to properly execute an instruction. An "operational error" occurs when the air traffic controller makes a mistake and allows planes to pass closer to one another than is allowed. When a developmental is training and working live air traffic with a controller, an operational error is assigned to the instructor, and not to the developmental.
Defendant avers that there were two "operational errors" involving Plaintiff, "one operational error prior to April 2002" (Def.'s 56.1 Statement ¶ 53), and a second on April 21, 2002 ("the April 21 incident"). Though Plaintiff "disputes" the allegation in Def.'s 56.1 Statement ¶ 53, where Defendant refers to an error prior to April 2002, her "dispute" refers to her disagreements regarding the characterization of the April 21, 2002 event. Therefore, beyond using the word "dispute," Plaintiff has not actually disputed the assertion that she was involved with an "operational error" prior to April 2002. Nevertheless, Defendant does not elaborate on the prior "operational error" and it plays no part in the balance of this opinion.
Turning to the April 21 incident, Defendant alleges that a plane began to overtake another. Devivo stated that "[Plaintiff] did not respond to the airplane doing that and [did not] take any action to separate these airplanes." (Def.'s 56.1 Statement ¶ 53 (citing Devivo Dep. at 44-45).) Defendant acknowledges that the FAA determined that the loss of separation was caused by the pilot, that is to say it was not an "operational error," but rather was a "pilot deviation." (See id. ¶ 57 ("The situation was not determined by the FAA quality assurance to have been an operational error, which is a controller error.") (emphasis added).) Nevertheless, Defendant contends that Plaintiff's response to the error was unsatisfactory. (See Devivo Dep. at 45-49.)
After the incident, Plaintiff's training was suspended. Santos recommended that her training be terminated because she was not progressing adequately, maintaining that the April 21 incident was essentially an operational error by Plaintiff. A training review was held on April 30, 2002.
The review board consisted of Theresa Tracy, the manager of the training department when Plaintiff was a developmental, Tony Russo, a supervisor in the Islip sector at the TRACON, and John Gallucci, an air traffic controller in the Newark sector at TRACON. As a result of the review, the panel recommended termination of Plaintiff's training at Kennedy.
On May 13, 2002, Plaintiff subsequently transferred to a position as an air traffic controller at the LaGuardia Tower. Defendant contends that the transfer was the result of Plaintiff's voluntary request (Def.'s 56.1 Statement ¶ 76), while Plaintiff avers that she was "advised [that] if she did not accept the demotion to the LaGuardia Tower, her employment with the FAA would be terminated." (Pl.'s 56.1 Counterstatement ¶ 76.)
The following day, on May 14, 2002, Plaintiff filed an informal grievance with her union. In her grievance, Plaintiff did not make any reference to gender or national origin discrimination, but instead focused her complaint on the fact that the agency was not following training orders with regard to her training. Santos denied her grievance on June 10, 2002. Plaintiff subsequently sought Equal Employment Opportunity counseling on June 20, 2002 and filed a formal EEOC complaint of discrimination on August 28, 2002.
The EEOC issued to Plaintiff a right to sue letter on April 7, 2003. Plaintiff subsequently filed a pro se complaint with this Court on June 30, 2003. Thereafter, Plaintiff acquired legal ...