United States District Court, E.D. New York
MEMORANDUM & ORDER
I. LEO GLASSER, Senior District Judge.
In this action, plaintiff Terrell Gibbs alleges that his former employer, the Long Island Railroad ("LIRR"), Robert Musso, one of plaintiff's supervisors at the LIRR, and the Metropolitan Transportation Authority ("MTA") (together, "defendants") all discriminated against him on account of his race and age when the LIRR fired him from his probationary job as a Car Appearance Maintainer ("CAM"). That termination, claims plaintiff, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; 42 U.S.C. §§ 1981 and 1983; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, that motion is GRANTED.
Except where otherwise noted, the following facts are undisputed. Plaintiff is an African-American male who was born in 1989. Defs.' Ex. A, Dkt. No. 19-1 (hereinafter "Pl. Dep."), at 7:5-8. On November 16, 2011, the LIRR hired plaintiff as a CAM. Id. at 19:22-20:7. A CAM's duties include the proper disposal of garbage from all train cars and all aspects of cleaning car interiors, such as sweeping and mopping. Id. at 20:16-17. CAMs work in the LIRR's Maintenance and Equipment ("M/E") Department, and the LIRR has a written code of conduct for how M/E employees must behave. Id. at 33:10-34:8; Defs.' Ex. F, Dkt. No. 19-6. Failure to follow that code of conduct may result in an M/E employee's termination. Defs.' Ex. C, Dkt. No. 19-3 (hereinafter "PAL Hr'g Tr."), at 32:5-14; Defs.' Ex. F, Dkt. No. 19-6 (hereinafter "Micheletti Dep."), at 35:6-12.
Pursuant to a collective bargaining agreement between the LIRR and the United Transportation Union, newly-hired CAMs are subject to a one-year probationary period during which they are considered at-will employees-in-training. See generally Defs.' Ex. E, Dkt. No. 19-5. Plaintiff's first assignment as a probationary CAM began on or about November 23, 2011, when he was assigned to a night shift on a work gang at the LIRR's West Side Yard for commuter trains. Pl. Dep. at 42:10-20; Micheletti Dep. at 20:19-21:12. At the time, defendant Musso, a white, 52-year-old gang foreman at that yard, was in charge of supervising between 20 and 30 CAMs there, including plaintiff and other probationary CAMs. Defs.' Ex. B, Dkt. No. 19-2 (hereinafter "Musso Dep.") at 5:7-14, 24:2-21. The CAMs were of several different races, including other African-Americans besides plaintiff. Pl. Dep. at 43:21-45:13.
On January 23, 2012, Musso assigned plaintiff to mop the floors of a train's cars. Defs.' Ex. K, Dkt. No. 19-11, at 66. When Musso went to inspect the train, he found plaintiff wearing headphones (it is disputed as to whether they were around his neck or on his ears). Id.; Pl. Dep. at 35:23-24. Rule 121 of the M/E Code of Conduct prohibits the use of any "electronic music playing equipment" or headphones while "performing services." Defs.' Ex. F at 3. At a hearing conducted pursuant to New York Public Authorities Law § 1276(4) (the "PAL Hearing") regarding the allegations underlying this action, plaintiff testified that his headphones were playing music at the time Musso saw them, but plaintiff later claimed at his deposition in this action that his headphones were not emitting any sound. Compare PAL Hr'g Tr. at 33:5-20 with Pl. Dep. at 35:19-36:5. Musso told plaintiff that he could not wear the headphones, and plaintiff admitted that his use of the headphones violated the M/E Code of Conduct. Pl. Dep. at 36:11-16; PAL Hr'g Tr. at 34:9-18.
Four days later, on January 27, 2012, Musso assigned plaintiff to clean and empty the garbage receptacles on the odd-numbered cars of a train. Defs.' Ex. K at 66. When Musso inspected plaintiff's work, he found garbage on at least one seat of a train car plaintiff was supposed to clean. Id.; Pl. Dep. at 75:6-11. At the end of plaintiff's shift on that day, Musso issued a verbal warning to plaintiff about his conduct in the presence of another gang foreman, Joshua Rodriquez, and a representative from plaintiff's union. Defs.' Ex. K at 66; Pl. Dep. at 75:6-76:8. Although plaintiff spoke to the union representative alone following the warning, he did not tell the representative that he believed Musso was behaving in a discriminatory fashion. Pl. Dep. at 76:13-24. At some point between November of 2011 and February of 2012, plaintiff was again reprimanded by Musso for failing to clean a stain off the back of a seat in a train car. PAL Hr'g Tr. at 43:11-44:22. Plaintiff knew that it was his responsibility to clean the stain in question, but he did not clean it until after Musso told him he had missed it. Id. at 45:8-25.
During the probationary period, CAMs' supervisors submit Probationary Evaluation Forms ("evaluations") for each CAM on a quarterly basis to management personnel. The evaluation ranks probationary employees on a scale of "1" to "4, " with "1" indicating an unacceptable level of performance and "4" a performance that exceeded expectations. See Defs.' Ex. E at 3-4. Management then reviews the evaluations and all other relevant material (such as employee time sheets) to determine, with the concurrence of the human resources department, whether or not the CAMs' employment should continue. Id. at 4; Micheletti Dep. at 15:20-16:12. At all times relevant to this litigation, the person responsible for reviewing probationary employees' evaluations in the M/E Department was Antonia Micheletti, the Manager of Equipment, Payroll, Auditing and Control. Micheletti Dep. at 15:20-16:21. Musso completed his quarterly evaluation of plaintiff's work performance on February 25, 2012 and forwarded it to Micheletti for review with supporting documentation attached. Defs' Ex. K. Musso rated plaintiff a "1" on his ability to exhibit the required level of job knowledge and/or skills to perform his job, and a "2" (below minimum expectations) in eight other categories. Id. The supporting documentation Musso attached to the evaluation referenced both plaintiff's use of headphones on January 23, 2012 and his failure to clean a train car on January 27, 2012 as grounds for the ratings plaintiff received. Id. at 66.
On March 2, 2012, Micheletti indicated on the evaluation that plaintiff was not meeting departmental expectations because of his improper work performance and violation of the M/E Code of Conduct. Id. at 65. By that time, plaintiff had been transferred to a day shift, and on March 5, 2012, Micheletti sent an email to plaintiff's new gang foremen, Linwood Booker and Benjamin Torregosa, asking whether plaintiff's performance had improved. Pl.'s Ex. 3, Dkt. No. 28-3. Booker told Micheletti that plaintiff "ha[d] been quite consistent in performing his duties as a CAM" since being moved to the day shift. Id. On March 6, 2012, Micheletti wrote on a printed copy of Booker's email that, based on Booker's statement, plaintiff would be "evaluated again, regardless of [the] timing of [the] evaluation process, when he moves to another location." Id.
In a memorandum dated April 16, 2012 that was placed in plaintiff's personnel file, Micheletti indicated that she had spoken to both Musso and Rodiquez, and that "there appear[ed] to be no change with [plaintiff's] performance" after Musso's evaluation. Defs.' Ex. L, Dkt. No. 19-12. Citing this continued poor performance and plaintiff's violation of M/E Code of Conduct Rule 121, Micheletti recommended to the LIRR's human resources department that plaintiff be terminated. Id. At the time Micheletti made that recommendation, she had not met plaintiff and was unaware of his race. Micheletti Dep. at 76:8-11. The human resources department accepted Micheletti's recommendation, and plaintiff was fired on April 19, 2012. Defs.' Ex. N, Dkt. No. 19-14. Plaintiff was the only probationary CAM on Musso's work gang between November 2011 and January 2012 who was fired after one quarterly evaluation. Musso Dep. at 24:25-25:9.
Plaintiff maintains that Musso's animus towards his race and age was the true cause of his termination. He claims that Musso singled him out for ridicule when in the presence of other co-workers, and that Musso would repeatedly summon him on the yard's radio for no proper reason. Pl. Dep. at 83:4-9. According to plaintiff, Musso made statements to him such as "I don't know why you're here, but I am going to go over my boss to get you out of here" and "You're not a man[;] start acting like a man." Id. at 48:17-23. Plaintiff never personally witnessed Musso treat African-American employees differently than employees of other races, but heard from other co-workers that Musso did so. Id. at 56:19-57:21; 65:5-11. Plaintiff also claims that Musso ignored or played down other violations of the M/E Code of Conduct when other CAMs committed them, but treated plaintiff's violation far more seriously. Id. at 40:23-42:6. Musso denied these allegations at his deposition. See generally Musso Dep.
Plaintiff commenced this action on March 26, 2013. Dkt. No. 1. Defendants answered on June 10, 2013. Dkt. No. 10. Discovery closed on May 30, 2014, and defendants filed their summary judgment motion on July 11, 2014. Minute Entry of Apr. 24, 2014; Dkt No. 17. Plaintiff submitted opposition papers on October 6, 2014, and defendants replied on October 27, 2014. Dkt. Nos. 27-32.
Summary judgment is appropriate "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). "An issue of fact is genuine if the evidence is such that a reasonable jury could return a verdict for the non[-]moving party.... A fact is material if it might affect the outcome of the suit under the governing law." Fincher v. ...