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Moore v. Metro. Transp. Auth.

United States District Court, S.D. New York

August 22, 2013

ERIC MOORE, Plaintiff,

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For Marilyn Y. Armstrong, Marshall R. Mazyck, Lilian Alvarado, Gordon Urquhart, Blake J. Willett, Bryan Henry, Kenneth Davis, Eric Moore, Nzingha M. Kellman, Plaintiffs: Deanna R. Waldron, Rachel Dara Nicotra, Steven J. Hyman, LEAD ATTORNEYS, Janet Cohn Neschis, Jonathan Robert Jeremias, McLaughlin and Stern, LLP, New York, NY; Norman H Siegel, Siegel Teitelbaum & Evans LLP, New York, NY.

For Metropolitan Transportation Authority, Elliot Sander, Executive Director and Chief Executive Officer of the MTA, William Morange, Deputy Executive Director and Director of Secuity of the MTA, Kevin McConville, Chief of the MTA Police Department, Terrance Culhane, Assistant Deputy Chief of the MTA Police Department, Defendants: Craig Robert Benson, Stephen Andrew Fuchs, LEAD ATTORNEYS, Elias Jay Kahn, Littler Mendelson, P.C. (NYC), New York, NY; Keith Jay Rosenblatt, Littler, Mendelsohn, P.C., (NJ), Newark, NJ.

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Deborah A. Batts, United States District Judge.

Plaintiff Eric Moore (" Plaintiff" or " Moore" ), an African-American male, together with eight African-American plaintiffs and one Hispanic plaintiff, all of whom are current or former employees of the Metropolitan Transportation Authority (" MTA" ) Police Department (" MTA PD" ), commenced this action against MTA and four MTA executive officers (collectively, " Defendants" ), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law (" NYSHRL" ), the New York City Human Rights Law (" NYCHRL" ), and 42 U.S.C. § § 1981 and 1983. Plaintiff maintains that Defendants discriminated against him on the basis of his race by denying him promotions, transfers, and training, and subjecting him to a hostile work environment; engaged in a pattern or practice of racial discrimination; and retaliated against him for complaining to the New York State Division of Human Rights (" SDHR" ) about alleged discrimination and bringing the instant lawsuit. Defendants now move pursuant to Fed.R.Civ.P. 56 for Summary Judgment on each of Plaintiff's claims.[1]

For the reasons below, Defendants' Motion for Summary Judgment is granted in part, denied in part, and the Court reserves decision in part.


A. The Parties

Defendant MTA is a New York State public benefit corporation that provides public transportation services to the Greater New York City area. Defendant Elliot Sander served as the Executive Director and Chief Executive Officer of MTA from January 1, 2007 to May 7, 2009. Defendant William Morange was MTA Director of Security from July 2003 to December 2010. Defendant Kevin McConville was the Chief of the MTA PD from October 2005 to January 2008. Defendant Terrance Culhane was an Assistant Deputy Chief of the MTA PD from 2004 to July 2010.

Plaintiff Eric Moore began employment as a police officer with the Long Island Railroad Police Department (" LIRR PD" ) on February 28, 1994. In 1997, the New York State Legislature created the MTA, and on January 1, 1998, all employees of the LIRR PD, including Plaintiff, were transferred to the MTA PD.

B. Plaintiff's Employment with the MTA PD

Following the formation of the MTA PD in 1998, Moore accepted a position in MTA's Ceremonial Unit. (Pl.'s 56.1 Stmt, ¶ F.) He also became an active member of the Guardians Association, a fraternal organization of African-American law enforcement officials whose mission was to address racial discrimination within the

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MTA PD. (Moore Decl. ¶ 7.) In 1999, Moore became a Field Training Officer. (Defs.' 56.1 Stmt, ¶ 41.)

In 2000, Plaintiff submitted an abstract[2] for assignment to the Anticrime Unit and general Detective Division. (Pl.'s 56.1 Stmt. ¶ I.) MTA denied Moore's application, allegedly due to his race. (Id.) According to Plaintiff, Union Vice President Vincent Provenzano subsequently told him that " while you're a good guy, and you have plenty of arrests, it's really who you know" ; in the same conversation, Provenzano allegedly pointed to his arm, indicating his skin, and said, " This is going to hold you back." (Moore Decl. ¶ 10.) In 2001, Plaintiff was assigned to work with African-American Officer Mark Thomas, and was allegedly instructed " to advise [Thomas] of how a minority officer is to conduct himself." (Pl.'s 56.1 Stmt. ¶ LL; Thomas Dep. 73:21-74:1.) Moore alleges that this same year, three people told him that a Caucasian supervisor, Sergeant James Quinn, had called him " Little Farrakhan." (Moore Dep. 146:2-6, 14 6:17-24.) In 2002, Plaintiff submitted an abstract for promotion to Detective. (Pl.'s 56.1 Stmt. ¶ J.) He was again not chosen, allegedly because of his race. (Id. ¶ ¶ K, N.) Plaintiff transferred to District 4 - Penn Station in 2004. (Id. ¶ O.)

C. Plaintiff's 2005 Application for Promotion to Detective

In March 2005, MTA published a Personnel Order requesting abstracts for promotion to Detective. (Id. ¶ U.) Moore submitted an abstract, and interviewed on March 29, 2005. (Fuchs Decl. Ex. 8, at D00005671.) On or before April 8, 2005, interviewer Jessie Crawford created a spreadsheet comparing Detective candidates. (Jeremias Decl. Ex. I.) The chart contained two columns for candidates' interview scores and one column for miscellaneous comments. (Id. at D00036067.) The interview score columns listed the number of bolded (i.e. important) and un-bolded (i.e. less important) points the candidates hit upon in the scenario-question portion of the interview. (Id.) Moore's " total bold" score was the same as Michael Alfalla, one of the candidates selected for Detective, and lower than the three other selected candidates, Luis Eleutice, Richard Lagnese, and Brian Longaro. (Id.) His " total unbold" score was higher than Eleutice and Lagnese's, the same as Alfalla's, and lower than Longaro's. (Id.) Plaintiff's MTA PD service was longer than all the selected candidates, the same length as one unselected candidate, and shorter than three unselected candidates. (Id.) The comments regarding Plaintiff were, " 11 MTA; FTO; Excellent Police Duty; Medal of Merit." (Id.)

On April 8, 2005, interviewer Stephen Conner " tinkered" with Crawford's spreadsheet, adding columns for report writing, attendance, and discipline. (Fuchs Decl. Ex. 10.) Conner also added comments in the " Comments" column. (Id.) Longaro and four candidates not selected as Detectives received new positive comments, while Alfalla and three unselected candidates received new negative comments. (Id.) Moore did not receive any new comments in the " Comments" column. (Id.) However, in the " Report Writing" column, Conner wrote " average and brief" for Plaintiff, while making more positive notes about the reports of Alfalla, Eleutice, Lagnese, and Longaro. (Id.) In addition, the modified chart showed that the four selected candidates had better attendance records than Plaintiff. (Id.)

Moore argues that Alfalla, Eleutice, Lagnese, and Longaro were less qualified than him. For instance, the interviewers noted that Alfalla was " slow in responding" and " nervous," lacked confidence, " struggled

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through scenarios but did ok," gave " less than average" responses, and did much worse than some interviewees. (Pl. 56.1 Stmt. ¶ AA; Defs.' Resp. to Pl.'s 56.1 Stmt, ¶ AA.) Lagnese did not submit a timely application, conceded that his report writing skills needed improvement, and rambled during his interview. (Pl.'s 56.1 Stmt, ¶ Z.)

In September 2006, MTA selected Alfalla (Hispanic), Eleutice (Hispanic), Lagnese (Caucasian), and Longaro (Caucasian) to be Detectives, and did not select Plaintiff. (Defs.' 56.1 Stmt. ¶ ¶ 16, 27; Pl.'s 56.1 Stmt. ¶ V.) Plaintiff affirms that Alfalla identifies himself to MTA PD employees as white, and that Alfalla and Eleutice are light-skinned. (Moore Decl. ¶ 17.) However, Alfalla affirms that he is Hispanic and that he identifies himself as such. (Alfalla Decl. ¶ 2.)

After the promotion denial, Plaintiff told two supervisors uninvolved in the selection process, Lieutenant Robert Howell and Sergeant Richard Smith, that he believed the selections were discriminatory. (Pl.'s 56.1 Stmt. ¶ CC; Conner Reply Decl. ¶ 6.) In response, Howell asked Plaintiff, " [W]hat have you done to go over and beyond?" and encouraged Plaintiff to " do something that will keep them from saying no." (Moore Dep. 109:7, 263:1-2.) When Plaintiff asked Howell whether he meant that Lagnese and Longaro had " done things above and beyond," Howell responded, " I'm not saying that." (Id. at 109:8-12.) When Plaintiff asked whether Howell was " saying that I have to be ten times better than my . . . white counterparts," Howell said, " I'm not saying that either." (Id. at 109:12-15.) Howell and Smith both told Plaintiff that Defendants were " going to promote who they want to promote." (Id. at 263:9-10, 265:17-18.) Smith responded to Plaintiff's complaint that there were " no black detectives . . . on the east, and they don't want black detectives on the east," by stating, " [T]hat's not true, because . . . Ike Dennis could be a detective if he wanted to be a detective." (Id. at 266:2-8.) Plaintiff thinks that Defendants consider African-American Officer Ike Dennis to be " less confrontational" than Plaintiff, because Dennis " doesn't speak out" about " any issues that came up regarding race." (Id. at 115:7-14.)

D. Plaintiff's 2006 Request for Transfer to the K-9 Unit

On August 4, 2005, MTA published an Interim Order inviting MTA PD members interested in being assigned to the K-9 Unit, a specialized unit in which MTA PD officers use highly trained dogs to enhance security, to submit abstracts by August 15, 2005. (Defs.' 56.1 Stmt. ¶ 35; Jeremias Decl. Ex. AAA.) Plaintiff did not submit an abstract, and in September 2005 MTA appointed ten people to the K-9 Unit. (Pl.'s 56.1 Stmt, ¶ FF.) In early July 2006, K-9 Unit supervisors told Plaintiff about upcoming openings in the Unit. (Id. ¶ FF.) On July 13, 2006, Plaintiff emailed Inspector Joseph Martelli, Commanding Officer of the Special Operations Division, about the " recent rumors of future K-9 candidates," writing, " I respectfully submit a request to be considered for the K-9 Unit and will provide an abstract." (Fuchs Decl. Ex. 22.) Martelli denied Plaintiff's request, stating that MTA PD would " select upcoming positions in the Canine Unit" from a " pool of candidates" consisting of officers who had timely responded to the August 4, 2005 Interim Order. (Fuchs Decl. Ex. 22.)[3] In January 2007,

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MTA promoted sixteen officers to the K-9 Unit, of whom thirteen were Caucasian, two were Hispanic, and one was African-American. (Defs.' Reply to Pl.'s Resp. to Defs.' 56.1 Stmt. ¶ 35; Fuchs Decl. Exs. 15, 23; Jeremias Decl. Ex. JJ.) Plaintiff was not promoted. (Pl.'s 56.1 Stmt. ¶ HH.)

Plaintiff alleges that MTA's policies require publication of an Interim Order soliciting abstracts each time new openings arise in the K-9 Unit. (Id. ¶ FF.) He cites to the following deposition testimony of Chief McConville:

Q: And once the selection is made and you issue a personnel order what happens then to the list of names that were submitted for consideration?
A: . . . We fill the vacancies that we have. And then we would begin the process all over again if there were additional vacancies at some other point in time.
Q: So that once you have completed the number of vacancies you then would start a new process if there was a vacancy a year later, let's say?
A: Yes.

(McConville Dep. 309:12-25.) Defendants allege that no such policy existed. Inspector Martelli avers that " there is no rule or policy requiring that a new [Interim Order] be issued and an entire new round of interviews be conducted every time vacancies arise." (Martelli Reply Decl. ¶ 6.) Defendants also cite to two other instances in which multiple rounds of appointments were made from a single applicant pool or promotional ranking. From a pool of candidates who applied to become Detectives in September 2003, MTA selected one group of Detectives in November 2003 and two additional Detectives in February 2004. (Defs.' Reply to Pl.'s Resp. to Defs.' 56.1 Stmt. ¶ 35; Fuchs Reply Decl. Exs. 1, 4, 7; Jeremias Decl. Ex. HH.) In addition, selections for Lieutenant in August 2007, November 2008, and December 2009 were based entirely on a " Lieutenant Promotional Ranking" list published in June 2007. (Fuchs Reply Decl. Exs. 10-11.) The June 2007 Promotional Ranking list stated, " This list shall remain in effect until the Department publishes a new Lieutenant Promotional List." (Id. Ex. 10, at D00007360.)

Several African-American officers have filed complaints or testified that K-9 Unit hiring is discriminatory. (Pl.'s 56.1 Stmt. ¶ ¶ II-JJ.) In response to one complaint, the SDHR found probable cause of discrimination, noting that " [t]he Canine unit has . . . proved to be particularly difficult for Black officers to enter." (Jeremias Decl. Ex. KK, at D00031565-66.)

E. Plaintiff's 2007 Application for Promotion to Detective

On February 14, 2007, MTA published an Order requesting abstracts from officers seeking promotion to Detective. (Pl.'s 56.1 Stmt. ¶ VV.) Moore submitted an abstract, and interviewed on May 22, 2007. (Id. ¶ ¶ WW-XX.) Out of the twenty-seven officers interviewed, Defendants identified ten officers for further consideration; Plaintiff was not one of the ten. (Id. ¶ YY; Jeremias Decl. Ex. AA.) On August 1, 2007, MTA announced the promotions of David Cheung (Asian), Paul Dunn (African-American), Rhiannon McDermott (Caucasian), Leonard Pomposello (Caucasian), and Alfred Schreck (Caucasian) to Detective. (Pl.'s 56.1 Stmt. ¶ ZZ.) On August 27, 2007, MTA revised

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the announcement to exclude Schreck. (Fuchs Decl. Ex. 14.)

Plaintiff argues that he was exceptionally qualified to be promoted to Detective because he had thirteen years of service with MTA PD and was highly recommended, proficient with the Tiburon system, and responsible for supervising and training less-experienced officers. (Pl.'s 56.1 Stmt. ¶ ¶ WW, YY). Plaintiff's interviewers described him as " very positive," and " detailed, had great experience, and seemed familiar with protocol for varied incidents." (Id. ¶ XX.) Each interviewer noted Plaintiff's desire to improve his attendance, with one interviewer adding that Plaintiff's attendance " could be [an] issue for small unit staffing." (Fuchs Decl. Ex. 17, at D00007359; Ex. 18, at D00007351; Ex. 19, at D00007329.) Plaintiff's interview packet also included a statement from his supervisor that Plaintiff " use [sic] to be very active" but " may have diminished his activity." (Fuchs Decl. ¶ 21 & Ex. 20.)

Plaintiff claims that his attendance record was similar to that of Pomposello (promoted) and Thomas Finneran (identified for further consideration). (Pl.'s Resp. to Defs.' 56.1 Stmt. ¶ 24R.) In 2005, Pomposello had 180 hours of sick time, while Moore had 108 hours. (Jeremias Decl. Ex. O.) However, in 2007, Pomposello had only forty-eight hours of sick time compared to Plaintiff's 144 hours. (Fuchs Reply Decl. Ex. 13.) Finneran had one twelve-day sick occurrence between March 8, 2006 and March 7, 2007. (Jeremias Decl. Ex. J, at D00017446.) Although it is not clear how many sick days Plaintiff took during that precise twelve-month period, he had nine sick days between April 2005 and March 7, 2006, two sick occurrences totaling six days between March 8 and August 3, 2006, and approximately twenty[4] sick days between August 4, 2006 and May 22, 2007. (Fuchs Decl. ¶ 21 & Exs. 12, 20, 21.) Thus, Finneran had one twelve-day sick occurrence between March 8, 2006 and March 7, 2007, while Plaintiff had at least three sick occurrences totaling twenty-six days between March 8, 2006 and May 22, 2007. Finneran's sick days, then, average to one sick day per month, whereas Plaintiff's sick days average to 1.8 sick days per month.

Plaintiff alleges that he received a more positive evaluation from the interview panel than the ten officers identified for further consideration. (Pl.'s 56.1 Stmt. ¶ YY.) While the interviewers did make some negative comments about these candidates' interview performance, prior experience, and disciplinary history, most of their comments were positive evaluations of the candidates' interview performance, skills, knowledge base, and predicted effectiveness as Detectives. (See Pl.'s 56.1 Stmt. ¶ ¶ AAA-DDD; Defs.' Resp. to Pl.'s 56.1 Stmt. ¶ ¶ AAA-DDD; Jeremias Decl. Ex. J, at D00017446, D00017035, D00017180; Ex. CC, at D00017279; Ex. DD, at D00017067, D00017349, D00017351.) Plaintiff also notes that Dunn, the African-American officer promoted to Detective, never made a complaint of race discrimination. (Pl.'s 56.1 Stmt. ¶ GGG.)[5]

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In an August 21, 2007 letter addressed to Chief McConville, Plaintiff stated that there had been " discrepancies with the [May 2007] interview process," citing to a variation in the number of interviewers on each interview panel. (Jeremias Decl. Ex. BB, at D00007243.) Plaintiff also asked McConville to explain the criteria used to compile the list of officers selected as detectives, the order of the list, where Plaintiff " fit in" in the list, and the name of the person who created the list. (Id.) On September 26, 2007, Jessie Crawford, Assistant Director of Employment and Compensation Services, responded:

Police Officers in consideration for appointment to Detective in 2007 were interviewed by panels comprised of from two to four members of the MTA PD and a representative of the MTA's Human Resources Department. The final selection of Police Officers for appointment as Detectives was based upon the panel's assessment of their individual experience, achievement, skills, and performance in the interview process.

(Id. at D00007242.)

F. Plaintiff's Requests for ...

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