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Fraser v. MTA Long Island Rail Road

United States District Court, E.D. New York

March 31, 2018



          MATSUMOTO, United States District Judge

         Plaintiff Charmaine Fraser (“plaintiff”) brings this action against her employer, defendant MTA Long Island Rail Road (“LIRR” or “defendant”), alleging gender discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C.§ 2000e et seq., as amended (“Title VII”), the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (the “NYSHRL”), and the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq. (the “NYCHRL”), as well as violations of the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (the “EPA”) and the New York State Equal Pay Law, N.Y. Labor Law § 194 (the “NYEPL”). Defendant now moves for summary judgment with respect to the Title VII, NYSHRL and EPA claims alleged in plaintiff's amended complaint. For the reasons set forth above, defendant's motion is granted. The court declines to exercise supplemental jurisdiction over the causes of action brought under the NYCHRL and the NYEPL, which are dismissed without prejudice to pursuing them in State court.


         Unless otherwise stated, the following facts are either not in dispute, taken from plaintiff's own version of events, or taken from documents provided by counsel. Plaintiff is an African-American woman who was born in March 1978. (Declaration of Saul D. Zabell in Opposition to Defendant's Motion for Summary Judgment (“Zabell Declaration”), Ex. 15; Declaration of Kevin P. McCaffrey in Support of Motion for Summary Judgment (“McCaffrey Declaration”), Ex. II.) In May 2000, at age 23, she was hired by the LIRR as an Assistant Conductor. (Defendant's Rule 56.1 Statement (“Def. 56.1”), ¶ 1; Plaintiff's Rule 56.1 Counterstatement (“Pl. 56.1”), ¶ 1.) In late 2001, she became an Assistant Stationmaster (“ASM”) trainee. (Def. 56.1, ¶ 2; Pl. 56.1, ¶ 2.) She remained an ASM trainee until August 2002, when she “became a qualified ASM.” (Pl. 56.1, ¶ 2.)

         ASMs are unionized and represented by the Transportation Communications Union (the “TCU”). (Def. 56.1, ¶ 4; Pl. 56.1, ¶ 4.) Their duties include supervising ushers, ensuring proper crewing on trains, ensuring trains leave on schedule, ensuring customer and employee safety, and making announcements. (Def. 56.1, ¶ 3; Pl. 56.1, ¶ 3.) According to an organizational chart provided by plaintiff, there are approximately 20 ASMs, all of whom report to the General Stationmaster (the “GSM”). (Zabell Declaration, Ex. 4.) The GSM, in turn, reports to the General Superintendent - Terminal Operations. (Id., Exs. 4, 5.)

         When plaintiff became an ASM, the GSM was a man named James Burns. (Def. 56.1, ¶ 5; Pl. 56.1, ¶ 5.) Burns retired three or four years later, in June 2005. (Def. 56.1, ¶ 6; Pl. 56.1, ¶ 6.) According to plaintiff, she was approached by Kenneth Walther, then the Superintendent of Penn Station, and asked if she would consider applying for Burns' position. (Transcript of Plaintiff's Oct. 25, 2013, Deposition (“Pl. Dep. I”) (attached to the McCaffrey Declaration as Exhibit A), pp. 24-25.) Plaintiff, who was newly married, nine-months pregnant and unfamiliar with the GSM's duties, declined to do so. (Id., p. 25-26.)

         Burns was replaced by another man, Lachlan Cameron, who became GSM in late July 2005. (Def. 56.1, ¶¶ 8-9; Pl. 56.1, ¶¶ 8-9.) Walther appointed plaintiff as his assistant. (Pl. Dep. I, p. 30.) Among the tasks which she performed in that capacity was management of the “ASM Board”- essentially, the work schedule for all the ASMs. (Id., pp. 31-32, 46.)

         Even though each ASM bid on and “owned a job, ” the GSM had authority to reassign the ASMs as needed. (Id., pp. 34-35.) Cameron “would utilize seniority ... the best he could” in making assignments, but he would not assign an ASM to a job that he or she could not handle. (Id., p. 35.) Although this did not happen frequently, plaintiff recalled an instance in 2007 or 2008 which an ASM Barrett was removed from the “extra list” and placed on a “relief job” because Cameron thought that Barrett was “having a hard time managing his schedule ....” (Id., pp. 36-37.) Plaintiff also recalled that Barrett, who “owned” the position on the extra list and who had not requested the transfer, called Cameron to express displeasure. (Id., pp. 36, 38.)

         Cameron retired effective December 1, 2008 (Def. 56.1, ¶ 25; Pl. 56.1, ¶ 25), and plaintiff became Acting GSM. (Pl. Dep. I, p. 48.) In that capacity, she attended a meeting with Vincent Campasano, who was soon to become General Superintendent - Terminal Operations. Prior to the meeting, she and others made jokes which offended Campasano. (Pl. Dep. I, pp. 56-57.) After the meeting, Campasano telephoned plaintiff, complained that she “didn't show him any respect” and “semi-implied” that she would not be considered for the GSM position because her husband, another LIRR employee, had a disciplinary record. (Id.) Although plaintiff did not know if Campasano called other attendees as well, (id., p. 69, ) she testified that she was subsequently told by Williams Gibbons, then the General Superintendent of Penn Station and the head of her department, not to joke with Campasano until after she was awarded the GSM position. (Id., pp. 56-57.)

         On February 1, 2009, the MTA's Office of the Inspector General (the “IG”) received an anonymous complaint regarding the manner in which plaintiff was scheduling the ASMs. The complaint, a copy of which is included in Exhibit T to the McCaffrey Declaration, alleged that plaintiff was “racially targeting and providing Overtime for some of her closest friends/employees, ” rather than following the “union work rule” of awarding overtime based on seniority. The complaint further alleged that the ASM Board was never filled out until “Friday after everyone has done the assigned shifts or is [sic] to[o] late to change anything.” (McCaffrey Declaration, Ex. T.) Copies of the complaint were sent to Campasano, Gibbons and Rod Brooks, the Chief Transportation Officer. (Id.)

         On February 11, 2009, Helen E. Williams, the President of the LIRR, referred the complaint to Brooks; S.M. Drayzen, the Vice President of Labor Relations; and others for a response. (Id.) That same day, plaintiff was promoted to GSM. (Def. 56.1, ¶ 30; Pl. 56.1, ¶ 30.) That promotion, however, ended up costing her almost $30, 000 per year. (Transcript of plaintiff's Jan. 2, 2014, Deposition (“Pl. Dep. II”) (attached to the McCaffrey Declaration as Exhibit B), p. 164.) Prior to the promotion, plaintiff's base salary was $78, 927.68 (Def. 56.1, ¶ 29; Pl. 56.1, ¶ 29), but she was also paid four overtime hours each day to compensate for her work as Acting GSM. (Pl. Dep. I, p. 48.) As a result, she was actually earning over $118, 000 per year. (Zabell Declaration, Ex. 2; Affidavit of Charmaine Fraser in Opposition to defendant's Motion for Summary Judgment (“Plaintiff's Affidavit”), ¶ 1.) When she was promoted, her salary increased to $93, 000, but the position was “Non-Represented” and, accordingly, she was no longer eligible for overtime. (Zabell Declaration, Exs. 2 & 5.)

         Plaintiff was aware that Cameron's salary upon his retirement had been $95, 982, and requested that she receive the same salary. (Zabell Declaration, Ex. 1, p. 9.) According to a memorandum which plaintiff sent to Raymond P. Kenny, LIRR's Senior Vice President of Operations, on April 21, 2010, and which is attached to the Zabell Declaration as Exhibit 1 (hereafter, the “April 2010 Memorandum”), she met with Campasano, who represented that Cameron's last paycheck included compensation for unused vacation days, that increasing plaintiff's salary would necessitate increasing other salaries, and that Brooks did not approve the increase. (Id.) Plaintiff claims that she subsequently spoke with Cameron and Brooks, who contradicted two of Campasano's three stated reasons. (Id.)

         Following her promotion, plaintiff, who was only 30, received some “push back” from ASMs and unsuccessful applicants for the GSM position. For example, an engineer told plaintiff that he overheard Liam Clampett-a Transportation Manager who unsuccessfully applied for the GSM position-complain that plaintiff “only got the job because of who she is and what she is.” (Pl. Dep. I, pp. 51-52.) One of the ASMs, a Mr. Teresky, left the department after plaintiff denied his application for an additional meal period, stating that “no little black girl was going to tell him what to do.” (Id., pp. 127-28.) Teresky further stated that plaintiff had been promoted only because another woman, Judith Issan, did not want the job. (Id., p. 128.) Plaintiff never complained about Teresky's conduct. (Id., p. 129.)

         In the months following plaintiff's promotion, the Transportation Department conducted an investigation into the anonymous complaint against plaintiff. That investigation, which was described in a memorandum prepared by Drayzen in May 2010 (McCaffrey Declaration, Ex, U), ultimately determined that plaintiff had not engaged in any wrongdoing. However, the investigation determined that there was no set procedure for selecting which employees received overtime assignments and “weaknesses . . . in general administrative record keeping” relating to these assignments. (Id.)

         The Transfer of the ASM Board

         On February 23, 2010, plaintiff had a meeting with Brooks, in which the Chief Transportation Officer proposed transferring the ASM Board to the Crew Dispatcher (also called the Crew Management Office or Manpower Office), who handled the scheduling of most other LIRR employees. According to plaintiff's April 2010 Memorandum, Brooks thought that the computer system used by the Crew Dispatcher would “remove the human factor” in scheduling the ASMs. (Zabell Declaration, Ex. 1, p. 11.) He told plaintiff to do “due diligence” with Labor Relations on whether or not the computerized system would work. (Id.) Plaintiff told Brooks that she “already had things in order” and was concerned that “the Manpower office would not be able to provide the same amount of oversight” as plaintiff gave to the scheduling of ASMs. (Id.)

         Plaintiff's April 2010 Memorandum details some of the steps she took after her meeting with Brooks. Among other things, plaintiff had a meeting with her direct supervisor, Campasano, and Barry Kaufman, the person investigating the anonymous complaint, in which Campasano allegedly became “agitated” with plaintiff. (Id., p. 12.) Plaintiff then spoke with a person in the Information Technology (“IT”) department who was familiar with the Crew Dispatcher's computer system and who told her that the system could be loaded onto her computer. (Id.) She also spoke with a person in Labor Relations, who told her that the Crew Dispatcher did not consider the operation of the computer system to be “owned work.” (Id.)

         During the week of March 8, 2010, plaintiff had a conversation with Gibbons, who asked her if she had asked “IT” about the computer system and whether it could be loaded onto her computer. (Id.) When plaintiff responded in the affirmative, Gibbons informed her that Campasano had learned of these developments upon his return from vacation and demanded to know who had given plaintiff the authority to do that. (Id., p. 13.) Plaintiff then “expressed [her] displeasure . . . with such statements coming from . . . Campasano, ” saying that she was “tasked with finding efficient ways to run” her department and asking, “If using this program can do it, what is the issue.” (Id.)

         On March 21, 2010, plaintiff sent Brooks a document in which she recounted her discussions with IT and the Labor Department and proposed that she retain the responsibility for scheduling the ASMs. (Id., p. 13.) She also recounted a March 10, 2010, conversation with the Manpower Office, which allegedly told plaintiff that the office was “not equipped or able to handle the ASM [B]oard.” (Id.) However, in an email dated March 22, 2010, Brooks rejected her proposal, stating:

I've already committed to both the IG and the President's office that this work would be transferred to the Crew Dispatcher. I understand the proposal, but I still feel strongly that this is the way to go. The organization is under significant pressure to be transparent without raising costs; this gives clerical work to clerical people and frees the manager up to manage. Again, I understand your passion, but I've given my word and still feel that it is better off being handled by the crew dispatcher.

(McCaffrey Declaration, Ex. S.)

         Notwithstanding this email, plaintiff continued to press her case to retain control over the ASM Board. On April 21, 2010, she sent the April 2010 Memorandum, some of the contents of which have been discussed above. In that memorandum, entitled “My reasons for concern, ” plaintiff discussed Campasano's telephone call to her regarding her joke, her unsuccessful request to start at Cameron's ending salary, the slighting comments made about her by Clampett and other employees, and the anonymous, discredited complaint that she had engaged in favoritism. However, more than half of the memorandum related to the decision to transfer the ASM Board. Plaintiff claimed that this transfer created the perception, which she shared “a little, ” that she was “being pushed out or prepared for abolishment.” (Zabell Declaration, Ex. 1, p. 16.) Although she did not specifically allege that the transfer of the ASM Board was due to her gender, she noted that she was the first woman to hold the GSM position and claimed that, in her dealings with Campasano, she perceived that he had “an issue when it comes to females.” (Id.)

         On July 12, 2010, plaintiff had another meeting with Brooks, in which he agreed to “take another look” at the decision to transfer the ASM Board. (McCaffrey Declaration, Ex. V.) In an email which plaintiff sent to Brooks following the meeting, plaintiff tacitly acknowledged that she had bypassed her immediate supervisor by stating: “I do believe in the chain of command, however in this case I felt that I would not be heard.” (Id.) In his response to her email, Brooks did not criticize plaintiff for bypassing her supervisor, but complimented her, stating: “[Y]our tenacity is amazing and you definitely are passionate about your work.” (Id.)

         By late January 2011, however, Brooks was beginning to lose patience with plaintiff. On January 24, 2011, plaintiff sent Brooks an email noting that the transfer of the ASM Board to the Crew Dispatcher would not accomplish his goal of ensuring that the ASMs assignments would not be determined by any one individual. (McCaffrey Declaration, Ex. QQ, p. 2.) In his response, Brooks did not specifically address this argument, stating, in pertinent part:

I am not willing to re-litigate this issue; we have studied and worked on this issue for nearly a year or more. I've heard the arguments, both pro and con, and have made the decision to move the dispatching of ASMs to the Crew Management Office based upon ... a consideration of the benefits and risks. I expect that, now that the decision is made, every manager will do everything in their power to ensure its success.

(Id., p. 1.)

         At some point, plaintiff became aware that she had been excluded from meetings relating to the transfer of the ASM Board. At first, plaintiff testified that she knew “for sure” of only two such meetings, both of which had been organized by Campasano, who was then the General Superintendent in Jamaica, Queens, and responsible for the Crew Dispatcher's Office. (Pl. Dep. II, pp. 51-52.) However, plaintiff was not sure when the meetings occurred or who attended them. (Id., p. 51.) She thought that the first meeting involved the union, which approached Campasano directly, and several represented “stationmasters” - presumably, ASMs. (Id., pp. 51-53.) Plaintiff believed that Campasano should have notified her because the ASMs were in her department, and theorized that Campasano had deliberately failed to do so because of her gender. (Id.) Plaintiff conceded that Campasano never mentioned her gender, but noted that Cameron had been alerted to similar meetings in the past. (Id., pp. 52-53.)

         Plaintiff knew little about the second meeting, except that Sprio Papanikolatos, then the General Superintendent - Terminal Operations, had been invited to attend. (Id., p. 51.) When he became unavailable, he asked a lead manager to appear in his stead. (Id.) The lead manager then called plaintiff to ask what to discuss at the meeting. (Id.) Plaintiff knew nothing about the meeting or what was discussed at it, although she claimed to know that it had “to do with the [B]oard and the crew dispatcher's office.” (Id., pp. 56-57.)

         Later, plaintiff recalled two other meetings which she did not attend. One was held on April 7, 2011, “to discuss [that] station ops dispatchers will dispatch ASMs by April 13th and no later.” (Pl. Dep. II, p. 59.) According to plaintiff, that meeting was organized by Campasano and attended by three of his subordinates: Barry Kaufman, who did “budgetary stuff and numbers, ” and two persons who were in charge of the Crew Management Office. (Id., pp. 59-60.) Plaintiff conceded that no one else from her department was invited to that meeting. (Id., p. 60.)

         The other meeting was between ASM Teresky and Michael Catok, who was employed in the Crew Management Office as a Superintendent Advisor. (Id., p. 62.) According to plaintiff, the two discussed “[h]ow the [B]oard works” and “what do they do in different instances.” (Id., p. 62.) Plaintiff implied that she would not have attended the meeting even if she had been invited, saying, “It was a meeting that shouldn't have taken place.” (Id., p. 63.)

         Although plaintiff testified that unnamed individuals informed her of other meetings to which she was not invited (id., p. 61), plaintiff did not offer any specific information relating to those meetings. Indeed, she could not even recall the dates on which the alleged meetings occurred. (Id., p. 62.) In contrast, plaintiff admitted that she was invited to at least five meetings relating to the transfer of the ASM Board: a January 10, 2011, meeting to “discuss any CBA related issues” arising by virtue of the transfer; a January 24, 2011, meeting to outline how the Crew Management Office would dispatch the ASMs; a February 3, 2011, meeting to discuss dispatching ASMs; a February 17, 2011, meeting to discuss rules for dispatching ASMs and a March 24, 2011, meeting to “discuss ASM crew board finalization.” (Id., pp. 58-59.)

         Plaintiff testified that she complained to Brooks, Gibbons, Kenney and Michael Gellormino-a Vice President of Transportation Services-about her exclusion from meetings. (Id., pp. 81-82.) When news of her complaint reached Campasano, he became “very irritated, ” reportedly sending Gibbons an email in which he stated that he did not work for plaintiff and would not answer to her. (Id., p. 104.) Plaintiff herself attributed Campasano's reaction to the fact that he did not like his decisions questioned, and did not like subordinates to “go around him” or to “say anything without his permission.” Id.

         Although plaintiff did not recall telling either Brooks or Kenny that she had been excluded because of her gender, she claimed that she made this assertion to Gelamino. (Id., pp. 81-82.) However, she did not meet with Gelamino until January 2012 - more than six months after Campasano announced the new system for dispatching ASMs in a memo dated May 6, 2011. (Id., p. 82; McCaffrey Declaration, Ex. X.) Moreover, plaintiff's two meetings with Gelamino were not exclusively, or even primarily, about her exclusion from meetings. (Pl. Dep. II, p. 83.) Rather, the meetings principally addressed issues relating to the appointment of ASM Barrett as Assistant General Stationmaster. (Id.)

         The Appointment of ASM Barrett as Plaintiff's Assistant

         When plaintiff first became GSM, the Assistant GSM was classified as a “special assignment” and was selected by the GSM, without regard to seniority. (Id., p. 90.) Plaintiff first appointed Steven Barry and, later, Joanne Sloane. (Id., p. 92.) Sometime thereafter, the union raised an issue about plaintiff assigning a represented ASM to substitute for her at management meetings. (Id., p. 96.) The TCU apparently insisted that Sloane be compensated for her out-of-classification work or that the GSM's assistant be reclassified in a way which would have resulted in the assistant being placed at the bottom of the seniority list for purposes of overtime. (Id., pp. 93-97.)

         The LIRR ultimately determined that it was a violation of the collective bargaining agreement for Sloane to attend management meetings and Gibbons told plaintiff to discontinue the longstanding practice of having the assistant substitute if the GSM was unavailable. (Id., pp. 98-99.) At her deposition, plaintiff opined that the LIRR may not have fought the union on this point because of plaintiff's gender, but also conceded: “Maybe there was nothing to fight on.” (Id., p. 100.)

         At some point, the union argued that the Assistant GSM position should be eliminated as unnecessary. In a heated exchange, William DeCarlo-a low-level LIRR employee who was attending the meeting in his capacity as a union representative - accused plaintiff and her assistant of doing nothing but “painting each other's toenails.” (Id., p. 101-02.) Plaintiff was rendered speechless “that a union representative . . . would say that to [her] as a female, as a manager” and expected one of the management attendees, which included her supervisor, to stop him or correct him. (Id., p. 102.) No. one did anything. (Id.)

         Although the Assistant GSM position was not eliminated, the LIRR ultimately agreed to have the position filled by the Crew Management Office, based on seniority. (Id., p. 92.) As a result, when Sloane retired in 2011, plaintiff could not pick her successor. (Id.) Rather, the position was awarded to the applicant with the most seniority: ASM Zekeisha Barrett. (Id., p. 105.)

         Plaintiff had a history of conflicts with Barrett, whom plaintiff had accused of physically threatening her in July 2010. (Id., p. 86.) Those allegations had been investigated, but were determined to be unsubstantiated. (Id., p. 87.) Plaintiff was unhappy about Barrett's appointment and met with Gelamino twice to express her concerns. (Id., p. 83.) Gelamino, who did not take any notes during the meetings, did not take any action to address plaintiff's concerns. (Id., pp. 83-84.)

         The Incidents in December 2011 and January 2012

         On December 21, 2011-about one month after assuming the post of Assistant GSM- Barrett called Alphonse Legene, a Transportation Manager at Penn Station, and complained that plaintiff had yelled at her, then hung up on her, during a telephone conversation earlier that day. (Id., p. 109; McCaffrey Declaration, Ex. CC.) Barrett also claimed that a third-party, Suzanne Clark, had overheard the exchange, and that plaintiff was subjecting her to a hostile work environment. (McCaffrey Declaration, Ex. CC, p. 2.) Campasano, the General Superintendent of Terminal Operations, directed Barrett to appear at the Trial Office to give a statement regarding the incident. (Id.)

         On December 29, 2011, Barrett appeared in the Trial Office and gave a statement before a Trial Officer Joe Mutone and a union officer. She claimed that the incident began after the acting Superintendent of Penn Station, Joe Navarro, directed her to supervise the cleaning of the Stationmaster's Office, a task which plaintiff had earlier assigned to another ASM, Daryle Ware, who was the Assistant GSM during an earlier shift. (McCaffrey Declaration, Ex. DD, p. 335.) Later that day, plaintiff telephoned Barrett and yelled at her for following Navarro's directions, rather than plaintiff's orders. (Id., p. 337.) Plaintiff instructed Barrett to speak to Ware, determine what he wanted cleaned, and to ensure that the cleaning was done. According to Barrett, plaintiff told her “to make sure that every dust bunny is outside that office, [even] if you have to get on your knees ....” (Id.) When Barrett complained that plaintiff was “talking ... in a very aggressive way, ” plaintiff allegedly responded that she did not care about Barrett's feelings and hung up on her. (Id.)

         Clark, a Secretarial Clerk employed by Campasano, had testified before the same Trial Officer on December 27, 2011, and corroborated most of Barrett's testimony. She testified that she heard plaintiff screaming at Barrett about not following her assignments, and Barrett calmly complaining about plaintiff yelling at her. (McCaffrey Declaration, Ex. EE, p. 321.) Barrett remained calm as plaintiff screamed at her about checking for “dust bunnies” but, after three minutes, began “getting a little upset ....” (Id., p. 322.) Barrett then accused plaintiff of creating a “hostile work environment, ” prompting plaintiff to hang up on her. (Id.)

         During her testimony before the Trial Office, plaintiff claimed that the conversation had become loud only after Barrett began yelling at her, and that the conversation was never “hostile.” (McCaffrey Declaration, Ex. GG, p. 82.) Plaintiff denied having asked Barrett to check for dust bunnies, asserting that she had said that Ware knew where every dust bunny was because he worked in the Stationmaster's office every day. (Id.)

         On January 5, 2012, about two weeks after the incident with Barrett, Arthur Maratea, National Vice President of the TCU, wrote Brooks a letter alleging that other ASMs were also feeling threatened by plaintiff. (McCaffrey Declaration, Ex. HH.) Without specifying any of the ASMs by name, Maratea asserted that ASMs had “been spoken to in a very unprofessional manner in the past as well as in the present, ” and had contacted the union for assistance. (Id.) He also alleged that plaintiff had “blatantly violated” some agreements that the union had reached with management, such as “the vacation understanding.” (Id.) Maratea requested a meeting “to rectify this situation so [union] members may do their job and not feel threatened in a hostile work environment.” (Id.)

         On January 11, 2012, there was another incident. Plaintiff, who was taking classes during the day to qualify as a conductor, had interviewed ASM applicants, chosen two candidates, and requested that Human Resources contact them with offers. (Pl. Dep. II, p. 122.) One candidate subsequently called plaintiff to say that he was starting the next day and to ask what books and other things he needed to bring. (Id.) Plaintiff expected that she would have been alerted by Human Resources if there were any problems with either candidate (id., p. 124), and therefore assumed that an offer had also been extended to the other candiDated: Paul Lieui. Although plaintiff denied that she told Lieui he had been awarded the job (id., p. 123), she admitted calling him with information regarding when and where to report, not knowing that the LIRR office in which he then worked had decided to hold him until March. (Id., p. 125.) At her deposition, plaintiff acknowledged that Human Resources was responsible for extending offers on behalf of LIRR, but noted that her violation of this rule was unintentional. (Id., p. 123.) In support of its motion, defendant has submitted a Declaration from the LIRR's Senior Director of Human Resources, who states that “[p]laintiff's interference” in the hiring process “was a serious breach of LIRR policies that created confusion and discord.” (Meilick Declaration at p. 6.)

         The Charge of Discrimination

         On January 27, 2012, plaintiff filed a charge of discrimination (the “Charge”) with the New York State Division of Human Rights (the “SDHR”), alleging that she had been discriminated against by Barrett, Campasano, Brooks and the General Superintendent of Transportation, Spiro Papanikolatos. (Zabell Declaration, Ex. 15, p. 3; McCaffrey Declaration, Ex. II, p. 3.) The Charge consisted of a completed form (the “Form”) and a four-page narrative (hereafter, the “Narrative”). The first page of the Narrative stated that plaintiff was attaching a copy of the April 2010 Memorandum, which is discussed on pages 9-10, ante.

         The Narrative principally complained about the transfer of the ASM Board and the elimination of her “right to choose [her] assistant.” However, the Narrative also touched on other incidents in which plaintiff felt that her authority had been undercut. Plaintiff alleged, inter alia, that her ability to approve or deny compensatory time for ASMs had been taken away and that her attempts to discipline a subordinate - an usher and union representative named Edward Baum - were frustrated by Papanikolatos because he was afraid of alienating the union.

         The Narrative also implied that Campasano had subjected her to a hostile work environment. She principally asserted that Campasano told her that she “didn't have a choice” but to accept Barrett as her assistant, and failed to support her when Barrett disregarded plaintiff's instructions. Instead, Campasano relieved her of her duties, and sent her to the Trial Office to give a statement of facts. (Narrative, pp. 2-3.) In addition, the Narrative alleged that Campasano and others did nothing to prevent 4½ days of plaintiff's comp time from expiring. (Id., p. 2.) Plaintiff's Narrative also recounted an incident in which Papanikolatos's son allegedly told plaintiff's 12-year-old daughter that his father “tortures” plaintiff at work. (Id.) Plaintiff expressed the belief that forcing her to work with Barrett constituted the “torture.” (Id.)

         The Narrative did not, however, allege facts to suggest that the “torture” was attributable to gender-based animus. To the contrary, the Narrative stated that Campasano refused to support her in her effort to replace Barrett because she “refused to set a poor picture of a previous ASM . . . .” (Id., p. 3.) In addition, the Narrative alleged that Gibbons told her that she was “probably the first General Stationmaster to hold the [ASMs] accountable and they didn't like it, ” and that Brooks told her that “things are difficult for people when they are ‘change agents.'” (Id., pp. 3-4.) Indeed, at her deposition, plaintiff admitted that she had never heard Campasano or Gibbons say anything indicative of gender bias. (Pl. Dep. II, p. 103.)

         To be sure, the Charge asserts discrimination based on protected characteristics. However, the Charge also makes it clear that plaintiff did not know which of her characteristics occasioned the discrimination. The Form contains a page which lists various types for discrimination and asks the complainant to check boxes to indicate the type of discrimination alleged. Plaintiff checked boxes to indicate discrimination based on age, race, sex and “familial status, ” based on the allegation that Papanikolatos's son “harassed” plaintiff's daughter at school. In addition, the Narrative notes that plaintiff is the first woman and the second African-American to hold the GSM position, and that she performed many of the GSM's tasks in her role as assistant to Cameron. (Narrative, p. 3.) Plaintiff asserts that “it is because of [her] gender and [her] race that all of a sudden, the work that [she] did under the cloak of Mr. Cameron was some how now not right.” (Id.)

         Plaintiff's Reassignment

         On April 24, 2012 - about three months after plaintiff filed her Charge - Brooks sent plaintiff a letter informing her that she was being reassigned to the position of “Manager Hours of Service” in the Transportation Services Department. (McCaffrey Declaration, Ex. KK.) Plaintiff retained the same annual salary. (Id.) However, according to organizational charts attached to the Zabell Declaration as Exhibit 4, plaintiff no longer had any subordinates and no longer reported directly to a General Superintendent. Rather, she reported to the Senior Manager -Transportation Services Support, who reported to the General Superintendent - Transportation Services Support.

         Brooks' letter asserted that plaintiff's “performance, behavior and leadership skills” had been “less than acceptable” for the GSM position and provided five “examples of the problems” experienced during her tenure. First, he stated that plaintiff had “violated corporate policy and confidentiality” by contacting Lieui on January 11, 2012. Second, referencing Maratea's January 5, 2012, letter, he noted that the TCU had complained to upper management about plaintiff speaking to subordinates in an unprofessional manner. Third, Brooks accused plaintiff of violating “LIRR's core values” by yelling at Barrett and telling her to disregard another manager's directions.

         The fourth and fifth examples both related to plaintiff's behavior regarding the transfer of the ASM Board. Brooks charged that she had resisted the transfer even though more senior managers requested that she stop, thereby making the transition more difficult for all concerned. He also charged that in mid-July 2011, plaintiff had involved herself in the dispatching of ASMs, even after being told by senior managers to desist, and had complained about the decision to transfer the ASM Board at meetings and in public.

         Brooks not only transferred plaintiff, but placed her on a “Performance Improvement Plan” (“PIP”). Under the PIP, plaintiff was to be given specific goals, with her performance to be monitored and assessed in six months. She was directed to report to the Senior Manager - Transportation Services Support on April 25, 2012, to begin her new assignment.

         Events after Reassignment

         When plaintiff reported to the Jamaica Control Center on April 25, 2012, she was assigned a cubicle because there were no offices available. (Pl. Dep. II, p. 139.) However, one of the offices was assigned to a Joseph Grippaldi, whose position had fewer “Hay Points” than plaintiff's.[1] (Id., p. 140.) Aware that offices were to be assigned based on Hay Point level, she spoke to her supervisor, Ed Indelicati, about the situation. (Id., pp. 140-41.) He said that he would look into it, but that Papanikolatos would make the decision regarding what to do. (Id., p. 141.)

         A month or so later, Indelicati revisited the issue. He agreed that plaintiff was entitled to Grippaldi's office, but told plaintiff that Grippaldi had been rejected for a promotion and that management did not “really want to hurt his feelings” by forcing him to move. (Id., p. 142.) At her deposition, plaintiff herself stated that she did not know whether the refusal to move Grippaldi was due to gender discrimination. (Id., p. 143.) She also implied that the refusal constituted retaliation, stating that her lawsuit was “already well-known.” (Id.) In fact, this lawsuit was not commenced until late November 2012.

         At some point thereafter, plaintiff was assigned an office in the Hillside Support Facility in Jamaica. (Id., p. 146.) According to plaintiff, the office was “filthy, ” with “dust and papers and dead plants and all types of things all over the office.” (Id.) Plaintiff's supervisor offered to help clean it, but plaintiff “objected to cleaning an office in that state.” (Id., p. 147.)

         After plaintiff rejected the first office, she was “given another space and told to order things for that room.” (Id.) However, that space was to be created by cutting a larger room in half. (Id.) At the time of her January 2, 2014, deposition, plaintiff was still waiting for the construction to be completed. (Id.) However, by that time, there was an open office in the Jamaica Control Center which had been vacant for at least six or seven months. (Id., p. 146.)

         Following her reassignment, plaintiff applied for positions as a Superintendent, a Lead Transportation Manager, and a Manager of Terminal Operations and Customer Service. (Id., p. 161.) The record does not contain evidence of when plaintiff applied for the Superintendent position or why she was rejected. However, there is documentary evidence that plaintiff was informed that she was ineligible for the Lead Transportation Manager position because she applied within a year of her reassignment and was still on a PIP. (Id., 161-62; McCaffrey Declaration, Ex. OO.) Plaintiff also was not hired as the Manager of Customer Service and Terminal Operations, a job which resembled the GSM position in that it included, inter ...

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