The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge
Wendell Howard, proceeding pro se, brings this action pursuant to
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e-17 ("Title VII"), and the Civil Rights Act of 1991, 42 U.S.C. §
1981, alleging that his former employer, MTA Metro-North Commuter
Railroad, discriminated against him on the basis of his race and
color. See Amended Complaint for Employment Discrimination, filed Oct.
28, 2010 (Docket # 14) ("Am. Compl."). Following discovery, MTA
Metro-North filed the instant motion for summary judgment.*fn1
The parties have
consented to have this matter decided by a United States Magistrate
Judge pursuant to 28 U.S.C. § 636(c). For the following reasons, the
defendant's motion is granted.
As an initial matter, the Court notes that Howard's opposition to the defendant's summary judgment motion did not conform to Rule 56.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York ("Local Rule 56.1"). Local Rule 56.1 requires a party opposing summary judgment to respond to the movant's statement of undisputed facts by submitting responses that cite to admissible evidence. Local Rule 56.1(d). Here, while Howard's submission responds to each of the paragraphs of defendant's Rule 56.1 statement, see Pl. 56.1 Resp., several of Howard's responses do not cite to admissible evidence but instead simply give Howard's version of what occurred. While we would normally reject such evidence as inadmissible, the cover page of this document indicates that it is signed under penalty of perjury, and it plainly references the statement that follows. Thus, we will assume that Howard is proffering all the statements in his submission as sworn statements. See Wali v. One Source Co., 678 F. Supp. 2d 170, 178 (S.D.N.Y. 2009) ("[W]here a pro se plaintiff fails to submit a proper [opposing statement] . . . , the Court retains some discretion to consider the substance of the plaintiff's arguments, where actually supported by evidentiary submissions.") (citations omitted). Accordingly, we treat the factual assertions in the defendant's 56.1 statement admitted only where they are not controverted by Howard's own statement or other admissible evidence in the record identified by the parties.
Unless otherwise noted, the following recitation of the facts is either based on undisputed facts or supports Howard's version of the events in question.
Howard, who is African-American, began working for MTA Metro-North on or about February 4, 2008. MTA Metro-North: New Hire Form, dated Feb. 4, 2008 (annexed as Ex. 1 to Pl. 56.1 Resp.). Howard was hired as locomotive engineer trainee as part of MTA Metro-North's Locomotive Engineer Training Program ("LETP"). Meinck Decl. ¶ 7. Prior to being hired, Howard was interviewed by three MTA Metro-North employees: Diana Tucker, see Locomotive Engineer Structured Interview and Evaluation, dated Nov. 9, 2007 (annexed as Ex. 5 to Pl. 56.1 Resp.) ("Tucker Interview"); Frank Mesa, see Locomotive Engineer Structured Interview and Evaluation, dated Nov. 9, 2007 (annexed as Ex. C to Fay Decl.) ("Mesa Interview"); and B. E. Anderson, see Locomotive Engineer Structured Interview and Evaluation, dated Nov. 9, 2007 (annexed as Ex. C to Fay Decl.) ("Anderson Interview"). There were 12 individuals in the training program, all of whom had prior experience as a locomotive engineer. Meinck Decl. ¶ 7. Howard had previously worked as a locomotive engineer for CSX, a freight company, from 2002 to 2007. Deposition of Wendell R. Howard, Feb. 1, 2011 (annexed as Ex. B to Fay Decl.) ("Howard Dep.") at 27. The twelve trainees in the program were divided into three groups of four. Id. at 43-44. There was one other African-American in the twelve person program, Kenneth Page, although he was not in Howard's group of four. Id. at 65.
Locomotive engineer trainees attend the LETP for approximately eleven months, during which they are considered probationary employees. Meinck Decl. ¶ 5. There are three phases in the LETP. The first phase is spent in the classroom, the second involves supervised training on non-revenue "deadhead" trains, and the third involves on-the-job training with licensed engineers. Id. ¶ 6. Each group of four trainees in Howard's program rotated through training on each of Metro-North's lines: the Harlem line, the Hudson line, and the New Haven line. Id. ¶ 8. Trainees complete all of the training on one line before moving onto the next line. Howard Dep. at 53-54. In order to advance from one line to another line, a trainee had to successfully complete a series of final examinations. Id. at 51-54. Howard passed all of the final exams for the Harlem line. Id. at 57. After successfully completing his exams on the Harlem line, Howard moved on to the Hudson line. Id.
Meinck was the instructor responsible for training all three groups on the Harlem line. Meinck Decl. ¶ 8. When administering early exams, Meinck signaled to students when they gave incorrect answers and allowed them to correct their answers. See Howard Dep. at 72; Pl. 56.1 Resp. ¶ 9(d). Nonetheless, Meinck marked Howard's exam answers as incorrect although he marked other students' answers as correct even if they committed the same error Howard had. See Pl. 56.1 Resp. ¶ 9(a). Additionally, a question on one test did not appear to ask for a response regarding times. When Howard answered the question correctly except for the applicable times, he was deducted a half-point. After being prompted by Meinck, the other students included the time before submitting their exams. See Pl. 56.1 Resp. ¶ 9(b) (citing Ex. 2 at bates 218, 272, 258, 4855). While training on the Harlem line, Howard failed one test, although he later passed the test and was able to move on to the Hudson line. Meinck Decl. ¶ 9.
Howard's instructor on the Hudson line was Joanne Santiago. Howard Dep. at 69. Santiago made derogatory remarks about Howard to other engineers when he was not present. Id. at 105. She criticized him for being unprepared. Howard Dep. at 113.*fn2 Howard believes that these comments were racially motivated. Howard Dep. at 105.
On June 4, 2008, Howard received a written warning for failing to report to duty at the specified time and failing to notify his instructor of his late arrival. Warning Letter, dated June 4, 2008 (annexed as Ex. H to Motion) ("Warning Letter"). Howard received the letter because he missed the train he was scheduled to take from Grand Central Terminal. Howard Dep. at 98-99. Howard was scheduled to ride on the train as part of his training. D. 56.1 Stat. ¶ 30. Howard has offered different explanations for why he missed the train, from the train's simply not being there, to having momentarily left the platform to get food. See Howard Dep. at 97-98; Investigation Report at 10.
On June 25, 2008, Howard was scheduled to work in Metro-North's Croton-Harmon rail yard. Howard Dep. at 127. When he arrived, Howard asked the engineer who was instructing him if he could go to Grand Central Terminal to retrieve study guides. Id. at 130. The engineer instructor gave him permission to do so. Id. When Howard arrived at Grand Central he went to the training center and asked Santiago and Meinck for the study guides. Id. at 134-35. Meinck said they were out of copies, but gave him a book and told Howard to make the requisite copies. Id. at 135. After Howard made the copies, he boarded a train to go back to his assigned work site, at which point he received a phone call from Meinck asking where he was assigned that day. Id. at 137. Immediately afterwards, Frank Mesa, the Acting Chief Training Officer, called Howard asking the same questions. Mesa also asked Howard to get off the train and come upstairs. Id. at 137-38. When Howard arrived upstairs, Mesa was angry and informed Howard that an engineer cannot give permission for a trainee to leave his assigned work site to get study guides. Id. at 138. Mesa also reminded Howard that he had recently received a disciplinary letter for missing a train. Id. Howard told that Mesa it was not his fault. Id. at 138-39. Mesa refused to shake Howard's hand when Howard offered it and told Howard to come see him the next day. Id. at 139.
In an affidavit, Meinck states that he found it unusual that Howard was in the training department offices during his workshift since he was supposed to be doing on-the-job training with a locomotive engineer. Meinck Decl. ¶ 10. This is what prompted him to call Howard shortly after Howard left the training center. Meinck then reported the situation to Mesa. Id. ¶¶ 10-11. After Mesa spoke to Howard, Meinck and Mesa spoke about Howard's conduct. They agreed that Howard "had exercised extremely poor judgment in abandoning his post and were concerned that his cumulative actions and attitude over the course of the training program reflected poorly on his judgment overall." Id. ¶ 12. Meinck states that an engineer "regularly makes decisions critical to the safety of thousands of individuals and good judgment is essential to the position." Id. Accordingly, they were concerned that Howard's actions were "indicative of a tendency to make poor judgments," which could affect the safety of others. Id.
On June 26, 2008, Howard went to see Mesa at the appointed time, Meinck was also present. Howard Dep. at 145-46. After Howard arrived, Mesa gave him a letter stating that his employment was terminated due to his poor judgment as exemplified by his violation of Metro-North Operating Rule C-d and guideline no. 20 of the Accelerated Engineer Training Program, as well as his insubordination when confronted with these rule violations. See Release from the Engineer Training Program, dated June 26, 2008 (annexed as Ex. I to Motion) ("Termination Letter"); Howard Dep. at 147. Howard ...