United States District Court, E.D. New York
Plaintiff is represented by Matthew Scott Porges, Brooklyn, NY.
Defendants are represented by Brian Kenneth Saltz of The Long Island Railroad Company, Jamaica, NY.
MEMORANDUM AND ORDER
JOSEPH F. BIANCO, District Judge.
Plaintiff Ganesh Jagmohan ("Jagmohan" or "plaintiff") brings this action against defendants The Long Island Railroad Company ("LIRR"), the Metropolitan Transportation Authority ("MTA"),  and eleven individual defendants employed by the LIRR-Vincent Andreotti, Daniel Cleary, Craig Daly, Michael Fyffe, Michael Gelormino, James Giallorenzo, Marilyn Kustoff, Catherine Lopresti, Eileen Rodriguez, Margaret Talalaj, and Robert Toolan-, alleging violations of his rights under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq., the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code §§ 8-107 et seq., and 42 U.S.C. § 1983. Plaintiff, a former manager at the LIRR, claims the LIRR and MTA discriminated against him on the basis of race and national origin and retaliated against him for complaining about the discrimination, and that the individual defendants aided and abetted the allegedly unlawful conduct. He also claims defendants retaliated against him when he spoke out about matters of public concern, in violation of his First Amendment rights. Defendants move for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff opposes, except that he withdraws his claims against the MTA and his claim for punitive damages. For the reasons set forth below, the Court grants defendants' motion for summary judgment on the federal claims, and declines to exercise supplemental jurisdiction over the state claims.
With respect to his Title VII claim, asserting that his failure to be promoted in late 2011 and early 2012 was discriminatory, it is uncontroverted that (1) LIRR policy prohibits the selection to open positions of employees who have been disciplined within the prior three years, and (2) plaintiff was disciplined in September 2010. Plaintiff fails to cite any instance where LIRR has deviated from this policy. Moreover, to the extent plaintiff attempts to argue that the underlying discipline in 2010 was unfair or discriminatory, it is uncontroverted that, in September 2010, he sent an email to a supervisor which stated, inter alia, "I am aggravated with you talking the talk but not walking the walk.' You are a smart man. You already know all of my concerns. For God sake! You are the [Deputy General Manager ("DGM")], take responsibility for the operation. We know you and I have different management style. I don't manage by making deals. Now that the deals are gone, I sense you don't know what to do. Maybe that [sic] why you have been acting that way lately." By the time plaintiff sent this email, the supervisor also had received complaints about plaintiff from others, including (1) the union representative, claiming that plaintiff talked down to employees; and (2) manager Dominick D'Antonio, claiming that plaintiff had verbally assaulted him and accused him of lying, being in bed with the union, and being just like another DGM, Toolan. Thus, there is simply no evidence from which a rational jury could find that the underlying discipline, or the failure to promote because of that discipline, were discriminatory.
With respect to his Title VII claim based upon the termination, it is uncontroverted that an employee plaintiff was supervising complained in October 2012 that, inter alia, plaintiff yelled at him, called him a "f***ing baby, " motioned at him with both hands, and tried to force him into a physical altercation. The employee said that it got so bad that he texted the word "help" to another employee. Plaintiff argues that the complaints were without merit, but concedes that the complaints were made. Thus, there is no evidence from which a rational jury could find the employer's decision to credit the serious complaints was discriminatory. Similarly, the Title VII retaliation claim cannot survive summary judgment. As discussed above, defendants have articulated the reasons for their adverse actions, and plaintiff cannot point to any evidence, other than temporal proximity, to support his claim of retaliation. Temporal proximity, however, alone is insufficient to allow a claim to survive summary judgment, especially given the uncontroverted evidence of the complaints about plaintiff's conduct by others.
Finally, the § 1983 retaliation claim cannot survive summary judgment, because the uncontroverted evidence demonstrates that, under the applicable Supreme Court and Second Circuit standard, plaintiff spoke as a public employee, rather than as a private citizen, when he complained to others within the LIRR about the allegedly preferential treatment being given to a snow removal vendor-information plaintiff claimed to have obtained while working in the LIRR's Babylon yard.
A. Factual Background
The Court takes the following facts from the parties' affidavits, depositions, exhibits, and Rule 56.1 Statements of Fact. The Court construes the facts in the light most favorable to the nonmoving party. See Capohianco v. City of New York, 422 F.3d 47, 50 (2d Cir. 2005). Although the Rule 56.1 statements contain specific citations to the record, the Court cites to the statements rather than to the underlying citations. Unless otherwise noted, where a Rule 56.1 statement is cited, that fact is undisputed or the opposing party has not pointed to any contradictory evidence in the record.
Plaintiff is of East Indian ethnic background and emigrated from Guyana at age ten. (Pl. 56.1 ¶ 1.) He began working for the LIRR in 2007. (Def. 56.1 ¶ 2.)
From February 2007 through June 2008, plaintiff worked as a general foreman in the LIRR's Jamaica Central Control. ( Id. ¶ 3.) In November 2007, plaintiff complained to Lopresti, the Deputy General Manager ("DGM") of Field Operations and Central Control, and Daly, another DGM, about unprofessional conduct of a sexual nature against plaintiff by Jenelle Sasco. (Pl. 56.1 ¶ 3.) In May 2008, plaintiff complained about inappropriate sexual conduct against a third party by Mario Diliberti. ( Id. ) Sasco, meanwhile, apparently complained that plaintiff attempted to intimidate her, raised his voice at her, and pounded his fist on the table. (Def. 56.1 ¶ 4.) Daly did not believe that plaintiff did what Sasco claimed. (Pl. 56.1 ¶ 4.)
Shortly after plaintiff complained about Diliberti in May 2008, management reassigned plaintiff to the Babylon yard, in part to broaden his experience. (Def. 56.1 ¶ 5.) Daly testified that plaintiff's "particular talents and the needs at Babylon" and the fact that "it was a good learning experience" prompted the transfer, which was "accelerated" to May 2008 "based [off] the [Sasco] incident, because [Sasco] was still in the workplace." (Daly Dep. at 36:6-22, Docket No. 26-8.) According to plaintiff, Babylon was farther from his home than Jamaica, there were issues with the equipment and unionized employees in Babylon, and he was required to do the work of multiple master mechanics while in Babylon. (Pl. 56.1 ¶ 5.) Plaintiff also was responsible for the supervision of a toilet servicing contract. (Def. 56.1 ¶ 6.) That May, plaintiff applied for a promotion to Master Mechanic. ( Id. ¶ 7.) Although he was promoted in February 2009, other employees were promoted in November 2008. ( Id. 8-9.)
On June 5, 2009, plaintiff complained to his supervisor about race and national origin discrimination. (Jagmohan 03/22 Dep. at 80:8-14.) The record does not indicate the specific basis for the complaint. Plaintiff asserts that, shortly thereafter, plaintiff was told to sign off on train cars being safe for service despite the fact that they had leaking gear cases. (Def. 56.1 ¶ 11.) According to plaintiff, federal and stringent LIRR requirements prevented him from signing off on the leaking gear cases. (Pl. 56.1 ¶ 12.) Plaintiff's supervisors, on the other hand, believed that if a gear case was wiped down so that there was no more oil on the leads, the train car could be operated. (Def. 56.1 ¶ 13.) Plaintiff testified that, on June 18, 2009, during a meeting regarding these issues with Lopresti and Gelormino, a Chief Mechanic Officer, plaintiff told Lopresti that she was discriminating and retaliating against him when she criticized his performance. ( Id. ¶ 14; Jagmohan 03/22 Dep. at 100:18-101:21, 103:3-16.)
In September 2009, plaintiff spoke to Toolan, the DGM, about an internal request sheet indicating that snow removal vendor DeLuca Landscaping ("DeLuca") was on the property on a certain date, even though DeLuca had not been on the property. (Def. 56.1 ¶ 15.) Plaintiff does not know if DeLuca was paid for work on that date. ( Id. ) Plaintiff also claims that on, December 18, 2009, Toolan ordered DeLuca to pre-salt certain yards before a snowstorm, and that plaintiff objected because the DeLuca contract did not call for pre-salting. ( Id. ¶ 17.) Plaintiff does not know if DeLuca was paid for the pre-salting. ( Id. ) Plaintiff then advised Toolan during January 2010 that DeLuca was overbilling the LIRR. ( Id. ¶ 20.) Plaintiff also emailed Lopresti to complain about Toolan's handling of the DeLuca contract. ( Id. ¶22.) Lopresti referred plaintiff to Kustoff, the Maintenance of Equipment Department's Manager of Trials, Investigations, and Grievances. ( Id.) Plaintiff claims that, during his meeting with Kustoff, he complained of race discrimination and retaliation. ( Id. ¶ 23.) Subsequently, in February 2010, Daly, Toolan, and other managers criticized plaintiff's toilet operation performance, and in June 2010, Toolan began questioning plaintiff's toilet servicing expenditures. ( Id. ¶ 24.) In March 2010, plaintiff was assigned to manage technical support supervisors. ( Id. ¶25.) Plaintiff also was assigned to the night shift for five months. ( Id. ¶ 26.)
On September 4-5, 2010, plaintiff and Toolan exchanged several emails. ( Id. ¶¶ 27-28.) In one email, plaintiff wrote, "Yes Bob. I am aggravated with you talking the talk but not walking the walk.' You are a smart man. You already know all of my concerns. For God sake! You are the DGM, take responsibility for the operation. We know you and I have different management style. I don't manage by making deals. Now that the deals are gone, I sense you don't know what to do. Maybe that [sic] why you have been acting that way lately." ( Id. ¶ 28.) By the time plaintiff sent these emails, Lopresti had received complaints about plaintiff from others, including (1) the union representative, claiming that plaintiff talked down to employees; and (2) manager Dominick D'Antonio, claiming that plaintiff had verbally assaulted him and accused him of lying, being in bed with the union, and being just like Toolan. ( Id. ¶ 29.) Lopresti asked Kustoff to help prepare a discipline letter. ( Id. ¶ 30.) That letter, dated September 29, 2010, and signed by Lopresti, noted plaintiff's response to Toolan's September 4, 2010 directive and explained that plaintiff's "defiant, insubordinate and unprofessional behavior" was counterproductive. ( Id. ¶ 30.) Lopresti wrote that she had lost confidence in plaintiff's ability to work with Toolan in a productive manner and that, in the interest of the smooth operation of the department, she had decided to transfer plaintiff back to Central Control. ( Id. ) Plaintiff suffered no loss of pay or benefits or change in title, and returned to the day shift. ( Id. )
On November 3, 2010, plaintiff and his former counsel met with LIRR representatives to discuss plaintiff's discrimination complaints. ( Id. ¶ 31.) Plaintiff's counsel sent a more detailed document on December 1, 2010, and filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on February 24, 2011. ( Id. ) Plaintiff received a right to sue notice from the EEOC on March 29, 2012. ( Id. ¶ 40.)
On or about May 4, 2011, plaintiff and other employees were reassigned as part of a large intradepartmental move. ( Id. ¶ 32.) As part of that move, plaintiff moved to the Plant Equipment Maintenance Division ("PEMD") section. ( Id. ) According to defendants, plaintiff was moved to PEMD because of his strong technical background and attention to detail, and the move was meant to give him valuable experience. ( Id. ¶ 33.) Cleary, the head of the section that included the PEMD, was looking for a technical person to join the group. ( Id. ) Plaintiff admits that defendants believed that plaintiff had those skills. (Pl. 56.1 ¶ 33.) Plaintiff's title, pay, and hours did not change. (Def. 56.1 ¶ 34.)
Plaintiff alleges that, on May 24, 2011, he complained to his new supervisor, Andreotti, about discrimination and retaliation, and that, on May 30, 2011, he advised Cleary and Andreotti about his complaints of race discrimination and retaliation. ( Id. 35.) Further, on May 31, 2011, plaintiff complained to Talalaj, who worked in Human Resources, about discrimination, and in November 2011, he told Andreotti that he would not go to Lopresti's retirement party because she did not like him because of his race. ( Id. ¶ 35.)
Plaintiff applied for a DGM position in December 2011. ( Id. ¶ 36.) According to defendants, LIRR policy prohibits the selection to open positions of employees who have been disciplined within the prior three years. ( Id. ¶ 37.) Thus, because plaintiff had been disciplined on September 29, 2010, he was ineligible for the position. ( Id. ¶ 38.)
In October 2011, plaintiff began supervising General Foreman Joseph Giannotti. ( Id. ¶ 43.) On October 23, 2012, Giannotti complained to Kustoff that earlier that day, plaintiff yelled at him, called him a "f***ing baby, " motioned at him with both hands, and tried to force him into a physical altercation. ( Id. ¶ 44.) Giannotti said that it got so bad that he texted the world "help" to Andreotti. ( Id. ) Kustoff conducted an investigation. She interviewed Giannotti, who said that (1) plaintiff aggressively questioned him on October 17 about issues related to plaintiff's lawsuit; (2) when Giannotti said he did not want to be part of the lawsuit, plaintiff told Giannotti that he was not fulfilling his duties; (3) Giannotti decided to leave railroad management because the environment had become too hostile; (4) when plaintiff heard about this, he yelled, pointed at Giannotti, and called him a "f***ing baby"; and (5) while yelling, plaintiff cornered Giannotti, motioned to him with both hands, and said, "Come on you f***ing baby, bring it, I need it for my lawsuit." ( Id. ¶ 46.) Giannotti also said that plaintiff had told him he was too fat, made cracks about Giannotti's ethnicity, and said he should know about the mafia because he was Italian. ( Id. 47.) Plaintiff admits that Giannotti made these accusations, but claims that the underlying events did not occur. (Pl. 56.1 ¶¶ 44-47.) Kustoff also interviewed plaintiff and other individuals. (Def. 56.1 ¶ 50.) Assistant Superintendent Barry Tuma said that on several occasions, plaintiff mentioned that many people named in the lawsuit have last names that begin with vowels and that Giannotti had "man boobs." ( Id. ) Plant Engineer Fred Backhaus said that plaintiff, when speaking with Giannotti, referred to the Mafia and names ending in vowels, and used the word "guinea, " an Italian slur. ( Id. ) Plaintiff disputes these allegations and claims that Kustoff did not interview individuals plaintiff had named as witnesses. (Pl. 56.1 ¶ 50.) During the investigation, both plaintiff and Giannotti were taken out of service with pay. (Def. 56.1 ¶ 53.) Following the investigation, plaintiff was terminated. ( Id. ¶ 54.)
The LIRR has an anti-harassment policy that prohibits harassment in the work place based upon, among other things, national origin, and gives examples of prohibited conduct including demeaning, derisive, or hostile comments toward an individual or group based on membership in a protected class. ( Id. ¶ 51.) The LIRR's Maintenance of Equipment Department also maintains a code of conduct that requires employees to treat other employees with respect and prohibits fighting. ( Id. ¶ 52.)
B. Procedural Background
Plaintiff filed the complaint on June 22, 2012, and the second amended complaint on November 14, 2012. Defendants moved for summary judgment on October 14, 2013. Plaintiff opposed on December 31, 2013. Defendants replied on January 12, 2014. The Court held oral argument on January 27, 2014. The Court has fully considered the submissions of the parties.
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(a), a court may grant a motion for summary judgment only if "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); Gonzalez v. City of Schenectady, 728 F.3d 149, 154 (2d Cir. 2013). The moving party bears the burden of showing that he or she is entitled to summary judgment. See Huminski v. Corsones, 396 F.3d 53, 69 (2d Cir. 2005). The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments.'" Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (quoting Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996)); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (summary judgment is unwarranted if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party").
Once the moving party has met its burden, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts... [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.'" Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (alteration and emphasis in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). As the Supreme Court stated in Anderson, "[i]f the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." 477 U.S. at 249-50 (citations omitted). Indeed, "the mere existence of some alleged factual dispute between the parties alone will not defeat an otherwise properly supported motion for summary judgment." Id. at 247-48 (emphasis in original). Thus, the nonmoving party may not rest upon mere conclusory allegations or denials but must set forth "concrete particulars' showing that a trial is needed. R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting SEC v. Research Automation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). ...