The opinion of the court was delivered by: Dora L. Irizarry, United States District Judge.
In this discrimination case, plaintiff Marie Rommage alleges in her complaint that defendant MTA Long Island Rail Road illegally terminated her from her position because of her race, gender and age and in retaliation for making an internal complaint and filing an EEOC complaint. Plaintiff claims violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and Section 8-107(a) of the Administrative Code of the City of New York. Defendant moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant's motion is granted in its entirety.
Plaintiff is an African-American female who was employed by defendant for approximately eight years. Plaintiff began her employment for defendant in July 1999 at the age of 19 as an assistant conductor, and in March 2001 became a block operator. (Declaration of Kevin McCaffrey, dated June 15, 2009 ("McCaffrey Decl.") Ex. B, at 75.) A block operator is responsible for safely routing trains. (Id. at 66.) In 2003, plaintiff became qualified as a Penn Station Central Control ("PSCC") console operator, which is responsible for safely routing trains in and out of Penn Station. (Id. at 72.) The block operator and PSCC console operator positions are essentially the same, although a PSCC console operator has a higher level of authority to route trains. (Def. 56.1 Stmt. ¶¶ 3, 5, 6; Pl. 56.1 Stmt. ¶¶ 3, 5, 6.) The block operator and PSCC console operator positions are both in the Transportation Department.
A. Implementation of Discipline at the Long Island Rail Road
The Transportation Department uses a discipline process designed to alert employees to their errors and deficiencies and provide them with an opportunity to improve their performance. (Def. 56.1 Stmt. ¶ 26; Pl. 56.1 Stmt. ¶ 26.) Violations of the Rules of the Operating Department ("operating rules") may result in the imposition of discipline. For example, if an employee misroutes a train, which is considered a serious problem that can result in injury or death, the misrouting is reported to the trial office for the appropriate sanction. (Def. 56.1 Stmt. ¶¶ 9-10; Pl. 56.1 Stmt. ¶¶ 9-10.) The trial office is responsible for administering discipline to employees of the Transportation Department for violations of the operating rules. (Def. 56.1 Stmt. ¶ 20.)
The trial office may issue to the employee a letter of caution or a verbal warning, neither of which result in a sanction. (Def. 56.1 Stmt. ¶¶ 31-32.)*fn1 If a more severe penalty is warranted, the trial office will issue a trial notice, which is resolved in accordance with the Collective Bargaining Agreement between the MTA LIRR and plaintiff's union. An employee may negotiate with the trial office to receive a trial waiver, in which an employee will admit to the violation of the operating rules of the department for an agreed upon sanction. (Def. 56.1 Stmt. ¶ 33.) If the employee does not agree to the trial waiver, a trial before a transportation manager proceeds, and the area superintendent will determine if there is sufficient evidence to sustain the charges and what sanction is appropriate. (Def. 56.1 Stmt. ¶¶ 35-36.) The employee can appeal to the Chief Transportation Officer ("CTO"), and can appeal the CTO's decision to the Director of Labor Relations. After exhausting internal appeals, the employee has a right to seek a hearing before a neutral arbitrator. (Def. 56.1 Stmt. ¶¶ 37-39; Pl. 56.1 Stmt. ¶¶ 37-39.)
B. Plaintiff's Discipline, Last Chance Agreement and Termination 1. Plaintiff's History of Discipline
In March 2001, September 2001, and January 2002, plaintiff received a letter of caution for failing to report to cover the first train, a verbal warning for improperly moving a train, and a verbal warning for requiring intervention to avoid the misrouting of a train, respectively. (Def. 56.1 Stmt. ¶¶ 40-42; Pl. 56.1 Stmt. ¶¶ 40-42.) In October 2002, plaintiff received a 30-day suspension and also was required to reassess her Amtrak qualifications for failing to apply a blocking device in violation of Rule 803 of Amtrak's operating rules. (Def. 56.1 Stmt. ¶ 43; Pl. 56.1 Stmt. ¶ 43; Declaration of Margaret McIntyre, dated July 20, 2009 ("McIntyre Decl.") Ex. 1.)*fn2 In 2003, plaintiff received a 45-day suspension for admitted abuse of sick leave, a verbal warning for failure to have a timetable or copy of the operating rules, a letter of caution for wearing sandals in violation of a safety rule, and a 60-day suspension for incorrectly routing a train in violation of Rule 613. (Def. 56.1 Stmt. ¶¶ 45-48; Pl. 56.1 Stmt. ¶¶ 45-48.) In November 2004, plaintiff received a letter of caution for violating the LIRR absence policy. (Def. 56.1 Stmt. ¶ 49; Pl. 56.1 Stmt. ¶ 49.)
From July 26 to July 29, 2005, plaintiff was cited for violating Rule 812 for failure to properly relay a notification to the appropriate console operator, using a cell phone in violation of company rules, and leaving work without permission. (Def. 56.1 Stmt. ¶¶ 52, 55, 57; Pl. 56.1 Stmt. ¶¶ 52, 55, 57.) In response to these citations, on September 12, 2005, plaintiff negotiated a settlement of the charges and signed a Last Chance Agreement, which is an agreement where the employee acknowledges that any similar future violations may result in her termination. (Def. 56.1 Stmt. ¶ 59; Pl. 56.1 Stmt. ¶ 59; McIntyre Decl. Ex. 1.) In the agreement, she accepted a 70-day suspension. (McIntyre Decl. Ex. 1.)
3. Conduct Subsequent to the Last Chance Agreement
On February 8, 2006, plaintiff received a verbal warning from her supervisor for improperly routing two trains onto one track. (McCaffrey Decl. Ex. U; see also Def. 56.1 Stmt. ¶ 61; Pl. 56.1 Stmt. ¶ 61.) On October 3, 2006, plaintiff received a verbal warning for improperly rerouting two trains. (McCaffrey Decl. Ex. W.) Defendant provided an email regarding this incident. (See id.) Plaintiff does not recall this incident, but provides no evidence to rebut the defendant's contemporaneous document. (See Pl. 56.1 Stmt. ¶ 63.)*fn3
On January 3, 2007, plaintiff was issued a notice for violating Rule 812, but the charge was withdrawn. (Def. 56.1 Stmt. ¶¶ 81-82; Pl. 56.1 Stmt. ¶¶ 81-82.) On January 10, 2007, plaintiff was issued a trial notice for violation of Rule 812 and of the Last Chance Agreement in connection with her failure to communicate information to her relief employee. (Def. 56.1 Stmt. ¶ 83; Pl. 56.1 Stmt. ¶ 83.) On February 6, 2007, the superintendent reviewing officer decided that she would be dismissed, but upon plaintiff's appeal, the CTO concluded that the charges were not fully supported. (Def. 56.1 Stmt. ¶¶ 85-86; Pl. 56.1 Stmt. ¶¶ 85-86.) The charges were withdrawn and plaintiff was paid for the time of her absence. (Def. 56.1 Stmt. ¶ 86; Pl. 56.1 Stmt. ¶ 86; see also McCaffrey Decl. Ex. HH.)
5. Plaintiff's Termination
On August 24, 2007, plaintiff misrouted a train onto the wrong track in violation of Rule 812 and permitted the train to traverse an interlocking switch that had a rusty condition without receiving the proper authorizations in violation of Rule 608. (Def. 56.1 Stmt. ¶ 88; Pl. 56.1 Stmt. ¶ 88.) On August 28, 2007, plaintiff was issued a trial notice, alleging a violation of the rules and of the Last Chance Agreement. (Def. 56.1 Stmt. ¶ 92; Pl. 56.1 Stmt. ¶ 92.) At the trial, various witnesses, including plaintiff, testified. (Def. 56.1 Stmt. ¶¶ 93-110; Pl. 56.1 Stmt. ¶¶ 93-110.) The transcript of the trial and exhibits were sent to General Superintendent -- Transportation Rob Brooks, the designated reviewing officer. (Def. 56.1 Stmt. ¶ 112; Pl. 56.1 Stmt. ¶ 112.) Mr. Brooks wrote to Ms. Rommage informing her that dismissal was the appropriate discipline. (McCaffrey Decl. Ex. LL.)
Plaintiff appealed the dismissal to the CTO, who denied the appeal. (Def. 56.1 Stmt. ¶ 116; Pl. 56.1 Stmt. ¶ 116.) Plaintiff then appealed to Labor Relations, and an appeal hearing was held on February 28, 2008. (Def. 56.1 Stmt. ¶¶ 117-18; Pl. 56.1 Stmt. ¶¶ 117-18.) There was no argument made at the hearing that plaintiff was subjected to discipline based on impermissible considerations or that she was treated differently on the basis of race, gender or age. (Def. 56.1 Stmt. ¶ 120; Pl. 56.1 Stmt. ¶ 120.) The Director of Labor Relations determined that the disciplinary action was supported by the evidence and that the discipline imposed was appropriate. (Def. 56.1 Stmt. ¶ 121; Pl. 56.1 Stmt. ¶ 121.)
6. Plaintiff's Appeal to the Public Law Board
Plaintiff appealed to the Public Law Board ("PLB"), which examines the record of the department trial to determine whether it is supported by sufficient evidence and was held in accordance with the Collective Bargaining Agreement. (Def. 56.1 Stmt. ¶ 124; Pl. 56.1 Stmt. ¶ 124.) Before the hearing, the parties are entitled to submit their arguments and any evidence in support of their arguments. Plaintiff was also present at the hearing and made an argument in her defense. (Def. 56.1 Stmt. ¶¶ 128-31; Pl. 56.1 Stmt. ¶¶ 128-31.) Plaintiff did not present the argument, either in her submission or in her statement at the hearing, that she was either subjected to discipline or was treated differently on the basis of race, gender or age. (Def. 56.1 Stmt. ¶¶ 129-32; Pl. 56.1 Stmt. ¶¶ 129-32.)
On November 21, 2008, the PLB issued a written decision sustaining the LIRR's right to terminate plaintiff and concluding that plaintiff failed to present any proof that she was coerced into signing the Last Chance Agreement, and that "she was extremely fortunate that [her union] was able to convince [the defendant] to offer her a Last Chance Agreement in view of her poor work history." (McCaffrey Decl. Ex. QQ.) The PLB decision further stated that it was clear that the LIRR had "attempted to use progressive discipline to correct the [plaintiff's] behavior to no avail." (McCaffrey Decl. Ex. QQ; Def. 56.1 Stmt. ¶ 133; Pl. 56.1 Stmt. ¶ 133.)
C. Plaintiff's Complaints About Rob Free
Prior to plaintiff's termination, on December 27, 2006, during a service disruption at Penn Station, one of plaintiff's superiors, Rob Free, broadcasted requests over a line audible to console operators. (Def. 56.1 Stmt. ¶ 69; Pl. 56.1 Stmt. ¶ 69.) Plaintiff did not implement the requests. (See Def. 56.1 Stmt. ¶ 70; Pl. 56.1 Stmt. ¶ 70.) When Mr. Free discovered that his requests had been denied, he stated "You guys are going to regret it when I come up there, I'll say that much, man. You guys are in for a rude awakening." (Def. 56.1 Stmt. ¶ 71; Pl. 56.1 Stmt. ¶ 71.)
Plaintiff wrote a letter of complaint, dated December 28, 2006, with regard to Mr. Free's comments, alleging that the comments were directed at her and were inappropriate and created a hostile work environment. (Def. 56.1 Stmt. ¶ 73; Pl. 56.1 Stmt. ¶ 73.) Plaintiff's letter did not explicitly state that she felt that she was being discriminated against on the basis of gender or race. (McCaffrey Ex. AA.) In response to the letter, an investigation was conducted by Antonia Gelia, a Supervisor of Train Movement. (Def. 56.1 Stmt. ¶ 76; Pl. 56.1 Stmt. ¶ 76.) Ms. Gelia wrote a memorandum, dated December 29, 2006, to J. V. Navarro, Superintendant of PSCC, stating that she met with plaintiff to discuss the claims and concluded that plaintiff's fear of termination was driving her complaint and that the complaint was "specious and lacks genuine value." (McCaffrey Decl. Ex. Z.) Plaintiff claims that Ms. Gelia, along with two other supervisors, berated her for writing the letter. (Pl. 56.1 Stmt. ¶ 77.)
On January 11, 2007, plaintiff contacted LIRR's EEO Officer at LIRR Diversity Management regarding the incident involving Mr. Free. (Def. 56.1 Stmt. ¶ 134; Pl. 56.1 Stmt. ¶ 134.) The EEO Officer advised plaintiff that her complaint did not involve an EEO matter. (Def. 56.1 Stmt. ¶ 138; Pl. 56.1 Stmt. ¶ 138.) On May 9, 2007, plaintiff filed a complaint of discrimination with the Equal Employment Opportunity Commission. (Def. 56.1 Stmt. ¶ 139; Pl. 56.1 Stmt. ¶ 139.) In the EEOC complaint, plaintiff alleged that Mr. Free's behavior was motivated by race and gender animus. She also complained that she was being disciplined, and was terminated, based on discrimination ...