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Kellman v. Metro. Transp. Auth.

United States District Court, S.D. New York

March 26, 2014


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For Marilyn Y. Armstrong, Marshall R. Mazyck, Lilian Alvarado, Blake J. Willett, Bryan Henry, Kenneth Davis, Eric Moore, Nzingha M. Kellman, Plaintiffs: Deanna R. Waldron, Steven J. Hyman, LEAD ATTORNEYS, Janet Cohn Neschis, McLaughlin and Stern, LLP, New York, NY; Norman H Siegel, LEAD ATTORNEY, Siegel Teitelbaum & Evans LLP, New York, NY; Rachel Dara Nicotra, LEAD ATTORNEY, Law Office of Rachel Nicotra, New York, NY; Jonathan Robert Jeremias, McLaughlin & Stern, 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 Nzingha M. Kellman (" Plaintiff" or " Kellman" ), an African-American female, 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 the 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 MTA discriminated against her on the basis of her race and sex by denying her promotions and training, subjecting her to a hostile work environment, and

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engaging in a pattern or practice of racial discrimination, and retaliated against her for complaining to the MTA Office of Civil Rights (" OCR" ) and the New York State Division of Human Rights (" SDHR" ) about alleged discrimination. Defendants now move pursuant to Fed.R.Civ.P. 56 for Summary Judgment on each of Plaintiff's claims.[1]

For the reasons set forth herein, 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 MTA PD from October 2005 to January 2008. Defendant Terrance Culhane was an Assistant Deputy Chief of MTA PD from 2004 to July 2010.

Plaintiff Nzingha M. Kellman joined MTA PD as a police officer on July 6, 1999. (Pl.'s 56.1 Stmt. ¶ A.)

B. Plaintiff's Employment with MTA PD

Plaintiff was first assigned to the Communications Unit and in 2001 transferred to District 3. (Pl.'s 56.1 Stmt. ¶ ¶ C-D.) She alleges that she experienced race- and sex-based harassment during both assignments. (Id.) For instance, MTA PD members barred Kellman from going to the bathroom until male officers finished using the facilities, called her a " fucking bitch" and a " skell," physically threatened her, wrote graffiti on her locker, and ordered her to deviate from her MTA-approved, pregnancy-related desk duty. (Id. ¶ ¶ E-K; Defs.' Resp. Pl.'s 56.1 Stmt. ¶ K.) MTA did not investigate Plaintiff's complaints of harassment. (Pl.'s 56.1 Stmt. ¶ ¶ G, EEE.)

In October 2003, Plaintiff was promoted to Sergeant, a nondiscretionary promotion resulting from her performance on the Sergeant's examination. (Id. ¶ N.) She was assigned to District 5 -- Grand Central in October 2003, where she was supervised by Deputy Inspector Robert Terrett and Inspector Thomas Dunn. (Id.) At Grand Central, Kellman was a patrol sergeant, and as such, was responsible for supervising patrol officers who reported from Grand Central. (Id.; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 7R.)

C. Plaintiff's Requests for Training

MTA's Training Bureau disseminates information about discretionary training courses to district commanding officers. (Pl.'s 56.1 Stmt. ¶ O.) Commanding officers may recommend particular members of their command for training courses, regardless of whether those members request the training. (Id.; Defs.' Resp. Pl.'s 56.1 Stmt. ¶ O; Terrett Dep. 152:22-25.) Alternatively, MTA PD members may request that their supervisors assign them to particular training courses. (Defs.' Resp. Pl.'s 56.1 Stmt. ¶ P.) However, no operational orders announce training opportunities to MTA PD members, and Kellman typically learned about discretionary training

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courses only after viewing Personnel Orders assigning other MTA PD members to those courses. (Pl.'s 56.1 Stmt. ¶ ¶ P-Q.) Defendants note that MTA PD members can look at other agencies' websites to learn about training courses offered by those agencies, and that since 2007, MTA has emailed notices about trainings offered by the Department of Criminal Justice Services to MTA PD members. (Defs.' Resp. Pl.'s 56.1 Stmt. ¶ ¶ O-P.)

Plaintiff repeatedly requested that Defendants consider her for all future training courses. (Pl.'s 56.1 Stmt. ¶ ¶ S-T.) In March 2004, Kellman requested assignment to Executive Protection Training after viewing a Personnel Order assigning others to the Training.[2] (Id. ¶ EE.) Terrett, Plaintiff's direct supervisor, denied her request, stating that Executive Protection Training was specialized training given only to members of specialized units. (Kellman Decl. ¶ 15.) In June 2004, a Personnel Order stated that MTA sought abstracts[3] for promotion to Detective Sergeant, particularly from members with Executive Protection Training. (Jeremias Decl. Ex. AA.) After seeing the Personnel Order, Plaintiff again requested assignment to Executive Protection Training, and Terrett told her, " You don't need the training. It's specialized." (Pl.'s 56.1 Stmt. ¶ EE; Kellman Dep. 226:4-5.) On May 28, 2011, after seeing a Personnel Order assigning employees to a June 2, 2011 Executive Protection Training, Plaintiff emailed Captain John Berlingieri to request assignment to the Training. (Jeremias Decl. Ex. KKK, at P06326.) Berlingieri's response, which he did not send until June 6, 2011, stated, " Should you see this class again please let me know and I will forward it up the chain of command for their consideration." (Id. at P06324.)

According to the record, four of the sixteen employees who received Executive Protection Training after the 1998 formation of MTA PD[4] were African American and two were women. (Barreto Dep. 92:2-16; Fuchs Decl. Ex. 21; Jeremias Decl. Ex. T; Jeremias Decl. Ex. KKK, at P06335; Urquhart Dep. 176:4-8.) When they received the Training, all sixteen were detectives or assigned to ICTF, a unit specializing in counterterrorism.[5] (Defs.' 56.1 Stmt. ¶ 36; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 36R; Defs.' Reply Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 36; Pl.'s 56.1 Stmt. ¶ LL; Barreto Decl. ¶ ¶ 3, 5-6; Barreto Dep. 46:2-6, 91:7-92:10; Fuchs Reply

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Decl. Ex. 21; Jeremias Decl. Ex. T; Jeremias Decl. Ex. KKK, at P06335; Urquhart Dep. 176:4-8.) Wilfredo Barreto, an Executive Protection Unit supervisor, affirms that when full-time members of the Executive Protection Unit are unavailable to perform executive protection duties, other MTA PD detectives are asked to do executive protection duties. (Barreto Decl. ¶ 2; Barreto Dep. 81:10-24, 132:8-19.) A larger group of detectives and/or ICTF members provides another type of executive protection, site security at high-risk events. (Barreto Reply Decl. ¶ 2; Barreto Dep. 130:9-132:7.) MTA PD began providing the Training to ICTF members in 2004, allegedly so that they would be better prepared to perform executive protection duties. (Barreto Reply Decl. ¶ 5.) In 2008, MTA PD began providing the Training to non-ICTF detectives so that they too would be better able to perform executive protection duties. (Barreto Reply Dec. ¶ 5; Barreto Dep. 124:9-19, 130:21-132:19.)

In July 2005, after viewing a Personnel Order assigning members to Land Transportation Antiterrorism Training, Plaintiff asked to attend the Training. (Pl.'s 56.1 Stmt. ¶ S; Jeremias Decl. Ex. U.) Her request was denied. (Pl.'s 56.1 Stmt. ¶ S.) Defendants allege that they denied the Training because it was not relevant to Kellman's duties or within MTA's needs. (Defs.' 56.1 Stmt. ¶ 40.) Terrett, however, states that he denied Plaintiff's request because " it would have created a scheduling problem, leaving [Grand Central] with one less Patrol Sergeant than was normally scheduled." (Terrett Reply Decl. ¶ 5.) Terrett did not supervise any of the seven members selected for the training. (Id.) Of those seven, one was an African American man and one was an African American woman. (Defs.' 56.1 Stmt. ¶ 37.)

Also in 2005, Plaintiff requested assignment to Incident Command Systems (" ICS" ) Training, and her request was denied. (Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 38R.) The Parties dispute whether Plaintiff made her request before or after the publication of a Personnel Order assigning three MTA PD members to an October 2005 ICS Training. (Kellman Decl. ¶ 18; Terrett Decl. ¶ 6.) Defendants initially alleged that Plaintiff was denied ICS Training because the Training was not required for performance of her duties and was not within MTA's needs. (Defs.' 56.1 Stmt. ¶ 40.) In his Reply Declaration, however, Terrett alleges that he denied Plaintiff the Training because Plaintiff requested it too late for him to arrange for her to attend. (Terrett Decl. ¶ 6; see Jeremias Decl. Ex. W.)

Of the three members assigned to the October 2005 ICS Training, two were Caucasian patrol sergeants and one was an African American lieutenant. (Defs.' 56.1 Stmt. ¶ 38; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 38R.) One of the assigned sergeants, Rosalie Grascia, also worked in District 5 -- Grand Central and was supervised by Terrett. (Kellman Decl. ¶ 18.) The assigned lieutenant, co-plaintiff Bryan Henry, attended the October 2005 Training in order to meet MTA's requirement that all lieutenants take ICS 300 Training. (Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 38R; Defs.' Reply Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 38.) All seven sergeants who attended an ICS Training course between March 2005 and October 2006 were Caucasian, and only one was a woman. (Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 38R; Jeremias Decl. Ex. W.)

Plaintiff requested assignment to Plainclothes Tactical Training in July 2006. (Pl.'s 56.1 Stmt. ¶ T.) Dunn denied Plaintiff's request, writing, " [A]t this time, plain clothes training is being offered to police officers." (Jeremias Decl. Ex. V, at

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P04276.) In 2005 and 2006, Plainclothes Tactical Training was given exclusively to police officers, at least eleven of whom were African American and at least seven of whom were female. (Defs.' 56.1 Stmt. ¶ 39.) One detective sergeant, three detective lieutenants, and one sergeant were assigned to Plainclothes Training in 2009. (Jeremias Decl. Ex. V, at D00042175, D00040245.) Although Plaintiff attended a training called Policy Review - Plainclothes Encounters in June 2009, she affirms that she continues to be denied access to Plainclothes Tactical Training. (Defs.' Resp. Pl.'s 56.1 Stmt. ¶ T; Fuchs Decl. Ex. 19, at D00042898; Kellman Decl. ¶ 19.)

D. Plaintiff's June 2004 Application for Promotion to Detective Sergeant

In June 2004, Defendants issued a Personnel Order requesting abstracts for promotion to Detective Sergeant with assignment to ICTF. (Jeremias Decl. Ex. AA.) Although the Personnel Order explicitly sought individuals with Executive Protection Training, MTA interviewed two individuals who did not have that Training, Kellman and Daniel Eivazi. (Pl.'s 56.1 Stmt. ¶ KK; Jeremias Decl. Ex. AA.) In July 2004, MTA promoted three Caucasian men, Eivazi, Thomas Farney, and Lawrence Cudia, to the position. (Jeremias Decl. Ex. Y.)

Defendants allege that Farney, Cudia, and Eivazi were chosen over Plaintiff because they had been sergeants for longer and because they had more investigative or supervisory experience. (Defs.' 56.1 Stmt. ¶ 42.) As compared to Kellman's eight months as a sergeant, Farney, Cudia, and Eivazi had been sergeants for fourteen months, at least three years, and fourteen months, respectively. (Jeremias Decl. Ex. Z, at D00007397; Jeremias Decl. Ex. DD, at D00024552, D00024557, D00024566, D00024571, D00024575, D00024580, D00024593, D00024598; Kellman Decl. ¶ 11.) Farney and Cudia gained investigative experience during their assignment to ICTF, with Farney gaining further experience from his work with the Applicant Investigations Unit. (Defs.' 56.1 Stmt. ¶ 42; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 42R(b)-(c); Defs.' Reply Pl.'s 56.1 Stmt. ¶ 42.) Farney and Cudia both mentioned their investigative experience at their interviews, and most interviewers remarked on that experience. Jeremias Decl. Ex. CC, at D00024405-06, D00024409-10, D00024416, D00024419, D00024428, D00024434, D00024437, D00024446; Jeremias Decl. Ex. DD, at D00024458, D00024576, D00024585.) In contrast, in response to the question, " What value can you bring to this unit?", neither Eivazi nor Kellman mentioned investigative experience. (Jeremias Decl. Ex. X, at D00007422, D00007431, D00007440, D00007449; Jeremias Decl. Ex. BB, at D00024508, D00024517, D00024526, D00024535.) Interviewer Ernest Pucillo wrote that Plaintiff " [h]as limited investigative experience." (Jeremias Decl. Ex. X, at D00007455.) Though Eivazi had little investigative background, he had six months more supervisory experience than Kellman. (Id. at D00007421; Jeremias Decl. Ex. Z, at D00007397; Jeremias Decl. Ex. BB, at D00024516.) Pucillo wrote that Eivazi " [h]as good supervisory background" (Jeremias Decl. Ex. BB, at D00024532), and interviewer James Flanagan wrote that Kellman " has little time as a spvr" (Jeremias Decl. Ex. X, at D00007428).

Plaintiff argues that the Personnel Order did not list supervisory and investigatory experience as qualifications, and instead listed, inter alia, " [k]nowledge in terrorist related computer investigations," " [a]bility to act as liaison with federal, state, and local law enforcement agencies," " [k]nowledge of databases for statistical analysis of intelligence," and " [d]evelop

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interagency coordination for emergencies with other city, state, and federal agencies." (Jeremias Decl. Ex. AA.) Kellman noted proficiency in Microsoft Word, Excel, and Powerpoint on her application and mentioned her computer skills and relationships with other law enforcement agencies at the interview. (Jeremias Decl. Ex. X, at D00007415, D00007440.) However, none of the interviewers mentioned these skills in their interview notes, even when reviewing Plaintiff positively. (Id. at D00007428, D00007437, D00007446, D00007455.) Plaintiff alleges that, among other weaknesses, the promoted candidates had weaker computer skills and relationships with other agencies than she did. (Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 42R.) In addition, one of the interviewers reviewed Kellman more positively than Eivazi. (Crawford Dep. 88:20-89:1.)

E. Plaintiff's July 2004 Application for Promotion to Detective Sergeant

In July 2004, Defendants requested abstracts for promotion to Detective Sergeant and assignment to the Detective Division. (Jeremias Decl. Ex. FF.) Stephen Conner interviewed Kellman and Sergeants Dirk Jordan, Alexander Lindsey, Lee Dittrich, and Andre Csizmadia for the position. (Pl.'s 56.1 Stmt. ¶ ¶ PP-QQ) Although two Detective Sergeant positions were available, only Jordan, an African American man, was promoted. (Id. ¶ PP.) Conner later stated that he did not fill the second slot because of a " lack of investigative experience for those candidates that were not selected." (Jeremias Decl. Ex. GGG, at D00013001.) Conner's interview notes on Kellman state, " Needs more 'supervisory investigative' knowledge that she doesn't have now. In time may deserve consideration but is not ready yet. Not recommended." (Jeremias Decl. Ex. EE, at D00013002.)

Plaintiff, who does not argue that she was more qualified for the position than Jordan, argues that she was more qualified than the other interviewees, all Caucasian men, and points out that Conner's interview notes include positive comments about her. (Defs.' 56.1 Stmt. ¶ 45; Pl.'s 56.1 Stmt. ¶ OO-QQ.) Of the fourteen detectives whom Conner promoted over his career, eleven were Caucasian men and one was a woman. (Pl.'s 56.1 Stmt. ¶ RR.)

F. Plaintiff's October 2005 Application for Promotion to Detective Sergeant

In October 2005, Defendants requested abstracts for promotion to Detective Sergeant. (Jeremias Decl. Ex. PP.) The Personnel Order stated that Defendants sought individuals with, inter alia, detective experience and five years law enforcement experience, and listed the Criminal Investigators Course (" CIC Training" ) as a requirement. (Id.) Because Kellman had never requested or received CIC Training, her supervisor, Terrett, disapproved her abstract, and she was not interviewed for the position. (Pl.'s 56.1 Stmt. ¶ XX; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 46R n.37.) Defendants interviewed Sergeant Joseph Johnston and Detective Andrew Roderick, both Caucasian men, for the position, and promoted Roderick. (Pl.'s 56.1 Stmt. ¶ ¶ XX, AAA.)

Plaintiff alleges that prior to submitting her abstract, several officers told her that the October 2005 Detective Sergeant position and the Personnel Order qualifications were designed specifically for Roderick, who had only five months supervisory experience. (Pl.'s 56.1 Stmt. ¶ ZZ; Jeremias Decl. Ex. H, at D00012962.) Before October 2005, some Caucasian members promoted to Detective Sergeant did not have detective experience or CIC Training, and Plaintiff alleges that Johnston had never received CIC Training. (Pl.'s 56.1 Stmt.

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¶ ¶ AAA-CCC.) However, Johnston attended the Fairfield County Detective Conference, which, according to Conner, was one of several equivalent CIC Trainings to which MTA PD sent its members. (Fuchs Reply Decl. Ex. 10; Conner Dep. 125:16-126:9.) Plaintiff argues that she too attended a training that covered the basic principles of CIC Training, the Sex Crimes and Child Abuse Investigators Course. (Pl.'s 56.1 Stmt. ¶ WW.)

G. Plaintiff's Complaint to MTA's Office of Civil Rights

On or around November 10, 2005, Plaintiff scheduled an appointment with MTA's OCR. (Pl.'s 56.1 Stmt. ¶ GGG; Jeremias Decl. Ex. H, at D00001213-14.) After an OCR employee informed Terrett of the scheduled meeting, Terrett allegedly called Kellman and threatened to transfer her from Grand Central to the Communications Unit. (Pl.'s 56.1 Stmt. ¶ GGG; Jeremias Decl. Ex. H, at D00012964, D00001213-14.) Had Plaintiff been transferred, she would have lost her supervisory responsibilities and would not have been able to make arrests or conduct investigations. (Pl.'s 56.1 Stmt. ¶ GGG.) On November 14, 2005, Plaintiff filed a Complaint of discrimination with OCR. (Id.; Jeremias Decl. Ex. H, at D00012960-61, D00012966-68.) On November 23, 2005, Plaintiff submitted additional allegations of discrimination to OCR. (Jeremias Decl. Ex. H, at D00012962-65.)

A citywide transit strike occurred from December 20 to December 22, 2005, during which time MTA PD advised its members that no one would be granted unscheduled days off. (Defs.' 56.1 Stmt. ¶ 52; Timothy Williams & Sewell Chan, " State Mediators' Plan Clears Way to Resolve 60-Hour Ordeal," N.Y. Times, Dec. 22, 2005,[6] Defendants argue that, notwithstanding this directive, Plaintiff tricked co-plaintiff Henry into approving two days off during the strike. (Defs.' 56.1 Stmt. ¶ 52; Dunn Dep. 240:11-20.) Plaintiff contends that she made her request after the strike ended. (Jeremias Decl. Ex. I, at P04296; Kellman Decl. ¶ 22; Kellman Dep. 200:13-24; 207:9-13.) Henry likewise affirms that there was no moratorium on vacation time when Kellman made her request, and does not state that she tricked him. (Henry Dep. 339:4-340:24.)

After discovering that Henry had authorized the days off, Dunn instructed him to inform Kellman that she could not take the vacation time. (Dunn Dep. 242:21-22.) According to Henry, Dunn's only stated rationale for rescinding Plaintiff's vacation time was that approving vacation time " was Lieutenant [Diane] Nash's job." (Henry Dep. 339:6-8, 340:2-7.) Dunn agrees that Nash, and not Henry, was " in charge of granting time off," but affirms that the primary reason Henry should not have granted Plaintiff's request was because the requested days off were during the strike. (Dunn Dep. 240:7-9, 241:24-242:4.) Kellman did not respond to Henry's calls to her cell phone and home phone, allegedly because she was in the middle of her commute home and her cell phone had died. (Kellman Dep. 210:16-211:1.)

After Henry told Dunn that he could not reach Plaintiff, Dunn either ordered or told Henry that " one of the options [wa]s" to ask the Delaware State Police to go to Plaintiff's house and " locate" her. (Defs.'

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56.1 Stmt. ¶ 52; Dunn Dep. 243:15-20; Henry Dep. 339:15-16.) Henry relayed the order to the Delaware State Police, who thereafter went to Plaintiff's house and searched her property with police dogs. (Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 52R.) A Delaware Canine Officer allegedly told Kellman that MTA PD had told him that she was sick and MTA PD was unable to contact her. (Kellman Decl. ¶ 22.) Plaintiff, however, was not sick. (Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 52R.) Moreover, Plaintiff argues that the situation did not require such urgent action, because the vacation day that Henry approved would not have occurred until a few days later. (Id.) ...

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