United States District Court, S.D. New York
DEBORAH A. BATTS, District Judge.
Plaintiff Bryan Henry ("Plaintiff" or "Henry"), 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 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 Defendants discriminated against him on the basis of his race by denying him promotions, subjecting him to a hostile work environment, and engaging in a pattern or practice of discrimination, and retaliated against him for complaining to his superiors, the New York State Division of Human Rights ("SDHR"), and the Police Benevolent Association ("PBA") about alleged discrimination. Defendants now move pursuant to Fed.R.Civ.P. 56 for Summary Judgment on each of Plaintiff's claims.
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.
I. FACTUAL BACKGROUND
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 Bryan Henry joined the Metro North Railroad Police Department ("MNR PD") in 1985. (Pl.'s 56.1 Stmt. ¶ A.) In 1997, the New York State Legislature created MTA PD, and on January 1, 1998, all employees of MNR PD, including Plaintiff, were transferred to MTA PD. (Defs.' 56.1 Stmt. ¶ 8.)
B. Plaintiff's Employment with MNR PD
Henry alleges he was discriminated against and subjected to racially derogatory remarks from early on in his career. For example, Defendant McConville, then a Detective, allegedly stated, in front of Henry and a group of Caucasian officers, that he was going to go to Henry's house and "fuck" Henry's wife, who was Caucasian. (Pl.'s 56.1 Stmt. ¶ B.) On another occasion, when Plaintiff requested back-up support, his supervisor allegedly denied the request and accused him of being afraid of guns and white people. (Id. ¶ C.) Throughout his time as a police officer, Plaintiff alleges he was isolated and ignored. (Id. ¶¶ C-D.)
In 1987, Henry passed the Sergeant's examination. (Id. ¶ E.) Defendants allegedly attempted to promote a Caucasian officer who was below Plaintiff on the promotional list without promoting Henry; Henry was allegedly only promoted when he complained to labor relations. (Id.) During his time as Sergeant, Henry allegedly learned that other MNR PD members had stated that "the niggers are taking over the Department, " discovered that someone had written "Uncle Tom" on a picture of him, listened to a tape-recorded conversation of two MNR PD members using the words "nigger" and "spic, " and was referred to as "boy" and "son" by Caucasian officers, sometimes in a Southern drawl. (Henry Decl. ¶ 6; Pl.'s 56.1 Stmt. ¶¶ F-H.) In 1988, Henry learned through the media about a video recording of a Caucasian MNR PD member asking an African-American homeless man, "When did you notice you turned black?" and "Did you find yourself eating a lot of watermelon, tap dancing, and shining shoes?" (Jeremias Decl. Ex. A; Pl.'s 56.1 Stmt. ¶ J.) MNR PD members also allegedly vandalized Henry's car and punched him without provocation. (Pl.'s 56.1 Stmt. ¶ H.)
MNR PD transferred Henry to Grand Central Terminal ("GCT") in 1989. (Id. ¶ I.) Allegedly, he was isolated in a one-man unit and not provided with an office, back-up support, or safety training, and other MNR PD members referred to him as "Skell Master" and "Uncle Tom." (Id. ¶ K.) Henry was promoted to Lieutenant in 1991 and to Captain in 1995. (Id. ¶¶ L, N.)
C. Plaintiff's Employment with MTA PD
Plaintiff transferred to MTA PD in 1998, and between 1998 and 2004 worked in a variety of locations and units. (Henry Decl. ¶¶ 11, 13, 19.) During this time, his supervisors allegedly continued to subject him to race-based harassment by screaming at him, loading and unloading their handguns in his office, ignoring him, admonishing him, taking away his vehicle, assigning him to guard the bathrooms, and requiring him to travel to attend one-on-one meetings where nothing of substance was discussed. (Pl.'s 56.1 Stmt. ¶¶ P-S.)
In June 2003, in the midst of a labor dispute, Plaintiff, Captain Thomas Dunn, and Inspectors Kevin Hoban and Stephen McCabe voluntarily reduced their rank to Lieutenant in order to receive better compensation. (Dunn Dep. 13:10-12; Pl.'s 56.1 Stmt. ¶ DD.) Captain Robert Terrett had voluntarily reduced his rank to Lieutenant earlier in 2003. (Henry Decl. ¶ 18; Pl.'s 56.1 Stmt. ¶ FF.) Although Plaintiff believed that MTA would repromote him and the others who had voluntarily reduced rank to their prior ranks, at the time of his reduction in rank, he was aware that MTA had not agreed to re-promote him. (Henry Decl. ¶ 18; Henry Dep. 155:24-156:5, 317:3-7.) Sometime between 2004 and 2005, he alleges that he overheard command staff stating that Chief of Police Thomas Lawless had told McConville that anyone who had voluntarily reduced rank would be promoted to his former rank. (Henry Dep. 317:8-318:4.)
In 2004, Henry began working in GCT under the supervision of Dunn and Terrett, who had been promoted to Inspector and Deputy Inspector, respectively. (Henry Decl. ¶ 20.) Plaintiff alleges that Dunn and Terrett treated him differently than Caucasian officers by threatening him with discipline, blaming him without cause, verbally harassing him, ordering him to perform conflicting tasks at the same time, and requiring him to do unnecessary or demeaning tasks. (Pl.'s 56.1 Stmt. ¶¶ RR-XX.)
On November 1, 2004, Henry emailed Terrett a list of security issues that he wanted added to the agenda of the next GCT staff meeting, including the potential threat posed by employees working for GCT vendors. (Jeremias Decl. Ex. PP.) Terrett directed Henry to add the issues to the agenda and to coordinate with the Interagency Counterterrorism Task Force ("ICTF") regarding employee checks for vendors in GCT. (Jeremias Decl. Ex. H, at D00005334.) He also instructed Henry that "issues related to security or topics that could be considered critical of the command should be brought to the attention of the district commanders prior to documenting them in email format" and that "the consistent forwarding of perceived problems with no solutions or actions to correct such issues was in effect, managing up' the chain of command." (Id.)
On December 7, 2004, Henry emailed Terrett and Dunn a list of suggestions, including "Diversity/Sensitivity Training... [to] help to reduce various social tensions plaguing the District." (Defs.' 56.1 Stmt. ¶ 27; Fuchs Decl. Ex. 16, at D00005356-57.) Terrett responded on December 9, 2004 by instructing Henry, inter alia, to "[c]ontact EEOC and determine what sensitivity training programs are offered and report back to me" and to "[i]n the future, ... forward all recommendations, and or issues, through the chain of command." (Fuchs Decl. Ex. 16, at D00005356.)
On December 12, 2004, Henry sent Terrett a lengthy email response alleging that he had faced "various forms of racism, vicious hostility and discrimination" during his time with MTA PD, criticizing the "threatening, punitive and hostile tone" of Terrett's email, and accusing Terrett of harassment. (Fuchs Decl. Ex. 17, at D00005361-63.) He ended the email by writing, "I suppose you'll (They'll) find room for a few more knives in dozens of knives already imbedded in my back. Do what you have to do!!!" (Id. at D00005363.)
As Henry passed Terrett's office door on the morning of December 13, 2004, he said to Terrett, "It's better to go out in a burst of glory. Today is a good day to die." (Pl.'s 56.1 Stmt. ¶ BBB.) Plaintiff affirms he was quoting Star Trek, and that he, Terrett, and others in the command quoted movie or television lines to each other almost every day. (Henry Decl. ¶ 21; Henry Dep. 209:17-211:1, 219:3-8.) Terrett affirms that he never shared movie quotes with Henry. (Terrett Dep. 211:13-18.) Although Terrett was initially unconcerned by Henry's remark, when he read his December 12 email a few minutes later, the email "combined with [Henry's] behavior at the front of [Terrett's] door raised [his] concern." (Id. 210:6-13.) Terrett told Dunn about Henry's statements and email shortly afterwards, and Dunn found the email to be insubordinate. (Dunn Dep. 94:6-95:11; Fuchs Reply Decl. Ex. 6, at D00023289; Terrett Dep. 211:19-25.) At a 5:00 P.M. meeting between Dunn, Lawless, and McConville on December 14, 2004, Lawless stated he was concerned for Henry's safety and instructed Dunn and McConville to go to Henry's house, put Henry on modified duty, and remove his weapons, shield, and MTA I.D.; Dunn, McConville, and PBA representative John See carried out Lawless's instruction at 9:00 P.M. that night. (Dunn Dep. 90:4-8; Fuchs Decl. Ex. 19; Pl.'s 56.1 Stmt. ¶¶ EEE-FFF.) Henry remained on modified duty until he was cleared by an MTA psychologist to return to full duty two weeks later. (Pl.'s 56.1 Stmt. ¶ FFF.) On January 18, 2005, Dunn counseled Henry on the "insubordinate" nature of his email. (Dunn Dep. 112:5-8, 117:4-7.)
On July 24, 2005, Henry emailed then-Director of Security Morange concerning MTA's fiber optic network. (Pl.'s 56.1 Stmt. ¶ GGG.) After Morange told McConville that the email should have gone through the chain of command, Dunn counseled Henry for going outside of the chain of command. (Dunn Decl. ¶ 5 & Ex. A; Morange Dep. 132:4-13.)
Between August 2, 2005 and August 15, 2005, Henry sent a series of emails containing photographs of potential security issues in GCT to Gary Schulze, a civilian employee of MTA assigned to ICTF (Fuchs Decl. Ex. 23; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 33R); in one of the emails, Henry forwarded the email he had sent to Morange in July, and added, "This was my last attempt to send any suggestion to anyone in the upper levels of the department. Inspector Dunn and chief McLaughlin blasted me for sending it - after this I really don't care any more." (Fuchs Decl. Ex. 23, at D00023389.) The facts surrounding these emails are in dispute. Plaintiff alleges that he sent the emails after he learned that he and Schulze were being assigned to a Security Committee and in response to Schulze's request that Henry email him about security issues they had discussed. (Henry Decl. ¶ 22.) Schulze says that he did not make any such request (Schulze Dep. 93:1-9), and Defendants provide evidence that Henry sent the emails before he and Schulze were assigned to the Security Committee. (Defs.' 56.1 Stmt. ¶¶ 34, 36; see Schulze Dep. 96:8-14.) Dunn affirms that he advised Henry he would be assigned to the Security Committee on September 9 or September 10, 2005. (Dunn Decl. ¶ 8.) New members of the Security Committee received official notification of the Committee's creation on September 27, 2005. (Fuchs Decl. Ex. 22.)
During a September 9, 2005 meeting between Dunn and Schulze, Schulze allegedly learned that Dunn and Terrett "had seen the pictures" Henry had emailed Schulze and were "upset that [Henry] had gone around the chain of command." (Defs.' 56.1 Stmt. ¶ 38; Schulze Dep. 93:18-19, 95:5-6.) Although Dunn's notes from the meeting show that he and Schulze discussed "info forwarded to ICTF by Lt. Henry last year" (Jeremias Decl. Ex. D), in his Declaration, Dunn affirms that he did not learn about Schulze's "receipt of emails from Henry" during the September 9, 2005 meeting. (Dunn Decl. ¶ 8.) On September 10, 2005, Henry sent Dunn an email attaching the nineteen emails he had sent to Schulze in August. (Id.) Dunn alleges that he did not open the nineteen attached emails at that time but, on the basis of the primary email, instructed Henry not to violate the chain of command. (Id.; Fuchs Decl. Ex. 21, at D00005336.)
On October 13, 2005, Dunn allegedly asked Henry if he wanted to hit him. (Henry Decl. ¶ 17; Pl.'s 56.1 Stmt. ¶ MMM.) Henry stated that he did not want to hit Dunn and that he was going to MTA's Employee Assistance Program ("EAP") because he was "having a bad day." (Pl.'s 56.1 Stmt. ¶ MMM.) When Dunn followed Henry to EAP and allegedly asked Henry if he was okay, Henry responded, "I'm tired of being treated like shit." (Jeremias Decl. Ex. D, at D00023198-99; Pl.'s 56.1 Stmt. ¶ MMM.) After leaving, Dunn met with McConville and expressed his concern for Henry's safety and the safety of others "in the event [Henry] became stressed out and lost control" and recommended that Henry be prohibited from returning to work until he was medically cleared to return. (Jeremias Decl. Ex. OO, at D00039287-88; see Jeremias Decl. Ex. D, at D00023199.) McConville responded, "[W]e need documentation in order to do something" and stated that Henry's December 2004 emails and comments were insufficient. (Jeremias Decl. Ex. OO, at D00039287.) Shortly after this conversation, Henry returned from EAP and, after telling Dunn "I'm okay now, '" "said something about being a Negro in a white mans [sic] world or white mans [sic] job.'" (Id. at D00039288; Pl.'s 56.1 Stmt. ¶ MMM.) On the morning of October 14, 2005, Dunn and Terrett again told McConville that they were concerned about Henry, and McConville reiterated that "unless we had something specific, we could not do anything and that we cannot bring up old incidents that he was already cleared on." (Jeremias Decl. Ex. OO, at D00039289.) At 12:30 P.M., an EAP employee told Dunn and Terrett that Henry was not dangerous. (Id. at D00039290.)
On October 14, 2005, Dunn forwarded to McConville Henry's September 10, 2005 email, in which Henry had attached his emails to Schulze. (Fuchs Decl. Ex. 23, at D00036564.) Dunn asked McConville to "take the time to open each attached e-mail and see what the Lt has sent to Gary - without our knowledge until I mentioned it to Bryan when I informed him I will be assigning him to assist with the new GCT Security Committee." (Id.) He alleges that only on October 17, 2005 did he learn that Henry's emails to Schulze contained "sensitive" information. (Dunn Decl. ¶ 10; Jeremias Decl. Ex. H, at D00005336-37.) Dunn alleges that only after an October 19, 2005 counseling session with Henry did he notice that Henry had forwarded Schulze the July 24, 2005 email to Morange; Dunn believed Henry's accompanying statement that he was sending the email even after being "blasted" by Dunn indicated his "willful insubordination." (Dunn Decl. ¶¶ 11-12.)
On October 25, 2005, Terrett recommended to Dunn that Henry be charged a Command Discipline and assessed a forty-hour suspension. (Defs.' 56.1 Stmt. ¶ 40; Dunn Decl. Ex. D.) Dunn subsequently filed a formal Command Discipline Report, which Henry received and signed on October 26, 2005. (Dunn Decl. ¶ 14; Fuchs Decl. Ex. 25.) The Report stated that on August 2, 2005, Henry "sen[t] an e-mail containing security sensitive information about Grand Central Terminal to a civilian employee of the M.T.A. without permission or authority.... Henry's conduct violated the Department's Chain of Command and was prejudicial to the good order and efficiency of this District. Lieutenant Henry had been previously counseled on three separate occasions related to this type of behavior and has received instruction prohibiting this conduct." (Fuchs Decl. Ex. 25, at D00005183.) Dunn found that Henry had violated the Department Manual's prohibitions on "engag[ing] in conduct prejudicial to good order, efficiency, or discipline" and on disseminating confidential Department information without proper authorization. (Fuchs Decl. Ex. 25.) Henry declined to accept the Command Discipline and instead chose to grieve the discipline pursuant to the MTA Collective Bargaining Agreement. (Defs.' 56.1 Stmt. ¶ 41.) On May 3, 2006, following negotiation with the PBA, McConville issued Henry a Letter of Instruction ("LOI") for his August 2005 emails to Schulze. (Fuchs Decl. Ex. 27; Pl.'s 56.1 Stmt. ¶¶ OOO-PPP.)
On July 11, 2006, Henry filed a Complaint alleging race discrimination with the SDHR. (Jeremias Decl. Ex. N; Pl.'s 56.1 Stmt. ¶ RRR.) On March 29, 2007, Henry submitted a ten-page complaint to the PBA alleging a race- and retaliation-based hostile work environment and requesting that he be transferred out of Dunn's command. (Jeremias Decl. Ex. Q.) PBA Vice President Vincent Provenzano forwarded Henry's PBA Complaint to McConville on April 3, 2007 and asked that Henry be transferred away from Dunn's supervision. (Id. at PBA309.) McConville forwarded the Complaint to Assistant Deputy Chief John D'Agostino, who oversaw MTA PD's Internal Affairs Bureau ("IAB"). (Pl.'s 56.1 Stmt. ¶ YYY.) Although D'Agostino stated that a full investigation of Henry's allegations would be conducted (Jeremias Decl. Ex. R), it is unclear whether IAB conducted an investigation. (Compare D'Agostino Dep. 201:10-12 with Fuchs Reply Decl. Ex. 11.) OCR closed its separate investigation of Henry's Complaint on May 14, 2007 because the complaint was "being investigated by MTA PD" and Henry "declined to speak to OCR, on advice of counsel." (Fuchs Reply Decl. Ex. 11, at D00013431.)
Dunn's notes reflect that on April 16, 2007, he received emails from Henry and learned from an MTA PD member that Henry was not currently at work; Dunn wrote, "will ck [sic] if he is getting e-mails @ home." (Jeremias Decl. Ex. D, at D00023264.) On April 18, 2007, Dunn emailed Assistant Deputy Chief Kimberly Rehbein, "I have just learned that Lt Henry does in fact have department e-mail access at home. Due to past complaints related to represented members accessing e-mails at home, I must request that Lt Henry's home access be terminated." (Jeremias Decl. Ex. TT.) Dunn alleges that he took this action because "[h]ome should be for home" and states that he told all the lieutenants working for him that "they shouldn't have email access at home." (Dunn Dep. 377:10-13.)
Also in April 2007, Deputy Inspector Sean Montgomery asked McConville to assign Henry to Montgomery's Directed Patrol initiative. (Montgomery Dep. 122:21-22; Pl.'s 56.1 Stmt. ¶ UUU.) McConville allegedly told Montgomery that he needed to talk to the Legal Department first and asked Montgomery whether he was sure he wanted Henry. (Montgomery Dep. 122:11-16.) When Montgomery asked whether there was something he should be aware of about Henry, McConville allegedly responded, "Yes. He is crazy." (Id. 122:17-19.) In May 2007, after PBA representatives advocated for Henry's transfer, Henry was assigned to work under Montgomery. (Pl.'s 56.1 Stmt. ¶ UUU.)
In September 2007, after Montgomery was promoted and replaced by Beahan, Henry asked to be transferred back to GCT because he did not enjoy working with Beahan. (Henry Dep. 488:18-489:11; Defs.' 56.1 Stmt. ¶ 64.) At GCT, Henry was supervised by Terrett; he alleges that Terrett used a hostile tone with him, ordered him to stay out of the office, and required him to do work typically assigned to sergeants. (Henry Decl. ¶ 33; Pl.'s 56.1 Stmt. ¶ MMMM.) In October 2008, Henry suffered a stroke and took disability leave. (Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 14R.) He retired from MTA PD in March 2009, allegedly because he and his psychologist believed workplace harassment was having a negative impact on his health. (Pl.'s 56.1 Stmt. ¶ NNNN; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 14R.) D. Denial of Promotions
In April 2002, MTA published a Directive listing nine Caucasian and two African-American captains, including Henry, who would be interviewed for promotion to Inspector. (Jeremias Decl. Ex. AA; Pl.'s 56.1 Stmt. ¶ V.) Plaintiff alleges he never received an interview, a claim denied by Defendants. (Pl.'s 56.1 Stmt. ¶ X; Defs.' Resp. Pl.'s 56.1 Stmt. ¶ X.) As of March 2004, everyone on the April 2002 Directive had been promoted above Captain other than Henry and two Caucasian members who had retired. (Pl.'s 56.1 Stmt. ¶ CC.) Also in March 2004, MTA promoted Stephen Conner from Lieutenant to Inspector and Defendant Culhane from Captain to Assistant Deputy Chief. (Fuchs Decl. Ex. 14.) Neither had been listed on the April 2002 Directive or submitted abstracts for these promotions. (Conner Dep. 23:5-7; Culhane Dep. 38:21-25, 44:13-19.)
On June 8, 2004, after MTA had improved the compensation issues that led to Dunn, Henry, Hoban, and McCabe's June 2003 voluntary reduction in rank, MTA issued two Personnel Orders. (Dunn Dep. 14:22-15:7; Fuchs Decl. Ex. 11, at D00010083-84.) A Personnel Order addressed to "All Lieutenants" requested abstracts for promotion to Captain and an Order addressed to "All Captains and Lieutenants" requested abstracts for promotion to Inspector. (Fuchs Decl. Ex. 11, at D00010083-84.) On June 16, 2004, MTA issued another Personnel Order addressed to "All Captains & Lieutenants" requesting abstracts for promotion to Deputy Inspector. (Id. at D00010080.) Henry alleges that he was not aware of these Personnel Orders. (Henry Dep. 319:10-320:21.)
The following individuals submitted abstracts in response to the Orders by the Orders' June 23, 2004 deadline: Dunn applied for promotion to Captain, Deputy Inspector, and Inspector; then-Captain Montgomery applied for promotion to Deputy Inspector and Inspector; Lieutenant James McKenna applied for promotion to Captain and Inspector; and Lieutenants Kevin King, Joseph Martelli, and Terrett applied for promotion to Inspector. (Fuchs Decl. Exs. 11-12; Fuchs Reply Decl. Exs. 2-3; Jeremias Decl. Ex. T, at D00040954.) Defense counsel affirms that the June 2004 abstracts of Lieutenants Neil Boyle, Kevin Kieran, and Douglas Peterson "remain unaccounted for" and that Plaintiff did not ask Defendants for information or documents regarding these three lieutenants' promotions prior to submitting his Opposition materials. (Fuchs Reply Decl. ¶¶ 3-4.) Henry did not submit an abstract. (Defs.' 56.1 Stmt. ¶ 22; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 22R.)
Describing the application process in a 2006 submission to the SDHR, MTA stated, "When it appeared that there had not been a large response to the Personnel Order [requesting abstracts for promotion to Captain], Chief Lawless asked his immediate subordinates to contact the lieutenants who had not filed abstracts and to ask them if they would do so. In response to this request, ... McConville spoke to Henry.... Henry never submitted an application...." (Jeremias Decl. Ex. O, at P02390.) However, both Henry and McConville affirm that McConville never asked Henry to submit an abstract, and McConville further claims that he had no involvement in the June 2004 promotion process and never contacted any MTA PD members to suggest they submit abstracts. (Henry Dep. 330:24-332:6; McConville Dep. 215:8-216:11.)
On July 14, 2004, MTA published a Personnel Order promoting, inter alios, Dunn and King to Inspector, Montgomery and Terrett to Deputy Inspector, and Boyle, Kieran, Martelli, McKenna, and Peterson to Captain. (Ontell Decl. Ex. B, at D00007380.) Lawless, prior to the publication of the Order, had one-on-one conversations with Dunn and Terrett during which he informed them they would be promoted. (Dunn Dep. 18:19-19:1; Terrett Dep. 34:22-35:16.) Hoban and ...