United States District Court, E.D. New York
OPINION & ORDER
GERSHON United States District Judge.
Abdou Thior brings this action against JetBlue Airways, Inc.
for discrimination based on race and national origin in
violation of Title VII of the Civil Rights Act of 1964
("Title VII"), as well as New York Executive Law
§ 296 ("NYSHRL") and New York City Human
Rights Law, N.Y. Admin. Code § 8-107
("NYCHRL"). In his complaint, plaintiff alleges
that he was discriminated against on the grounds of race and
national origin when he received a failing mark at a pilot
training program, which temporarily disqualified him from
being eligible for a promotion. Plaintiff seeks back pay,
front pay, and that the failing mark be removed from his
record. Defendant now moves for summary judgment seeking
dismissal of plaintiffs claims in their entirety. For the
reasons set forth below, defendant's motion is granted on
the ground of timeliness.
describes himself as a black, Senegalese-American. He began
working at JetBlue in 2007 as a pilot, initially as a
"first officer" and later as a captain after a
promotion in March of 2014 (approximately four months after
initiating this lawsuit). JetBlue requires its pilots to pass
an annual training program known as the Annual Recurrent
Training (the "Training").
January of 2011, plaintiff attended a Training at which his
training partner was James Hughes and his trainer was James
Olenik, both of whom are Caucasian males. Plaintiff alleges
that Olenik discriminated against him at the Training by: (1)
mocking his accent; (2) diverting from the standardized
Federal Aviation Administration ("FAA") approved
syllabus; and (3) giving him a failing mark despite his
having performed competently. The defendants dispute that
there was any discrimination.
undisputed that, after receiving a failing mark in January of
2011, plaintiff was required to attend a remedial course for
one year, during which time he was ineligible to receive a
promotion. According to defendant, JetBlue's policy is
that a person who receives a failing mark must complete one
year of remedial training. In his complaint to the Equal
Employment Opportunities Commission ("EEOC"),
plaintiff identified March of 2011 as the date on which his
eligibility for promotion, based on seniority, would have
accrued had he not been in the remedial training program.
he failed the Training and was placed into the remedial
program, plaintiff filed internal grievances with JetBlue and
requested that he be removed from the remedial program, but
these requests were denied in September of 2011. Plaintiff
ultimately filed a complaint with the EEOC on March 1, 2012.
complaint, plaintiff claims discrimination based on race and
national origin pursuant to: (1) Title VII; (2) NYSHRL and
Summary Judgment Standard
to Federal Rule of Civil Procedure 56, summary judgment is
appropriate if the movant demonstrates that there is no
genuine dispute as to any material fact, and the movant is
entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986). "A dispute is
not genuine unless the evidence is such that a reasonable
jury could return a verdict for the nonmoving party."
Shiflett v. Scores Holding Co., Inc., 601 Fed.Appx.
28, 29 (2d Cir. 2015) (internal quotation omitted). A court
is required to "construe all evidence in the light most
favorable to the nonmoving party, drawing all inferences and
resolving all ambiguities in its favor." Dickerson
v. Napolitano, 604 F.3d 732, 740 (2d Cir. 2010). The
moving party bears the burden of proof that no genuine issues
of fact exist, but, once it satisfies this initial burden,
the burden then shifts to the nonmoving party to present
evidence that there is a genuine issue for trial.
Celotex, 477 U.S. at 323. "Summary judgment is
appropriate where the record taken as a whole could not lead
a rational trier of fact to find for the non-moving
party." Rosenfeld v. Hostos Comty. Coll., 554
Fed.Appx. 72, 73 (2d Cir. 2014). Here, as noted, the facts
material to the issue of timeliness are undisputed.
Title VII Claim
Title VII, a plaintiff in New York State must file an
employment discrimination charge with the EEOC within 300
days after an alleged unlawful employment practice
occurred." Perez v. Harbor Freight Tools, 2017
WL 2644638, at *1 (2d Cir. June 20, 2017) (citing 42 U.S.C.
§ 2000e-5(e)(1)). "This statutory requirement is
analogous to a statute of limitations." Sanderson v.
New York State Elec. & Gas Corp., 560 Fed.Appx. 88,
90 (2d Cir. 2014) (internal quotation omitted). Here, it is
undisputed that plaintiff filed his EEOC charge on March 1,
2012-more than a year (and thus more than 300 days) after
Olenik failed plaintiff at the Training.
argues that his claim is nonetheless timely because the
entire period that he spent in the remedial program,
including the instances in which superiors refused to remove
him from the program, constitutes a discriminatory act.
Because a supervisor denied plaintiffs request to be removed
from the remedial program in September of 2011, plaintiff
argues his EEOC charge was timely filed on March 1, 2012, and
that the failing mark ...