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Fraser v. MTA Long Island Rail Road

United States District Court, E.D. New York

March 31, 2018

CHARMAINE FRASER, Plaintiff,
v.
MTA LONG ISLAND RAIL ROAD, defendant.

          MEMORANDUM AND ORDER

          KIYO A. MATSUMOTO, JUDGE

         This is the second of two actions brought by plaintiff Charmaine Fraser (“plaintiff”) against her employer, defendant MTA Long Island Rail Road (“LIRR” or “defendant”). The first action - Fraser v. MTA Long Island Rail Road, No. 12-CV-5778 (SLT)(CLP) (hereafter, Fraser I) - alleged 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”). In a memorandum and order dated March 31, 2018, the court granted defendant's motion for summary judgment with respect to the Title VII, NYSHRL and EPA claims. The court declined to exercise supplemental jurisdiction over the two causes of action brought under the NYEPL and NYCHRL, which were dismissed without prejudice to pursuing them in State court. In this second action, plaintiff brings additional retaliation claims under Title VII, the NYSHRL and the NYCHRL, alleging that defendant retaliated against her by rejecting five job applications she made to the LIRR between July 2012 and July 2014. Defendant now moves for summary judgment, arguing that the claims relating to the first two rejections are time-barred and that plaintiff cannot establish a claim for retaliation with respect to the other three rejections. For the reasons set forth below, the court grants defendants' motion with respect to plaintiff's Title VII and NYSHRL retaliation claims, and declines to exercise jurisdiction over plaintiff's NYCHRL retaliation claim.

         BACKGROUND

         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. 2, p. 4; Declaration of Kevin P. McCaffrey in Support of Motion for Summary Judgment (“McCaffrey Declaration”), Ex. D, p. 4.) 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 of Material Facts in Dispute (“Pl. 56.1”), ¶ 1.) She became an Assistant Station Master in 2001, and became the Acting General Station Master in or around December 2008. (Def. 56.1, ¶ 2; Pl. 56.1, ¶¶ 2-3.) In February 2009, plaintiff was appointed to the position of General Station Master. (Def. 56.1, ¶ 3; Pl. 56.1, ¶ 3.)

         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 defendant and several of its employees had discriminated against her on account of her gender and other protected characteristics. (Def. 56.1, ¶ 6; Pl. 56.1, ¶ 6.) The Charge, which is attached to the Zabell Declaration as Exhibit 2 and attached to the McCaffrey Declaration as Exhibit D, consists of a completed form (the “Form”) and a four-page narrative (the “Narrative”). The allegations in the Charge and the incidents which gave rise to it were discussed at length in Fraser I, and need not be repeated here. For purposes of this action, the court notes only that plaintiff checked a box on the form to allege “Retaliation, ” but that Narrative did not allege facts suggesting a Title VII retaliation claim.

         In late April 2012, about four months after plaintiff filed the Charge, plaintiff was removed from her position as General Station Master and involuntarily reassigned to a position as Manager Hours of Service. (Def. 56.1, ¶ 15; Pl. 56.1, ¶ 15.) Plaintiff was apprised of this reassignment in an April 24, 2012, letter authored by J. Rod Brooks, the LIRR's Chief Transportation Officer. That letter - which is attached to the Zabell Declaration as Exhibit 19 and attached to the McCaffrey Declaration as Exhibit E - described various instances in which plaintiff's “performance, behavior and leadership skills” were deemed “less than acceptable for the position” of General Station Master. (Id.) The letter also informed plaintiff that she was being placed on a “Performance Improvement Plan” (“PIP”), under which her job performance was to be monitored and reassessed after six months. (Id.; Def. 56.1, ¶ 16; Pl. 56.1, ¶ 16.)

         The First Two Job Applications

         Over the next six months, plaintiff applied for two other positions within the LIRR's Transportation Services Department. On or about July 7, 2012, she applied for a position as a Lead Transportation Manager (“LTM”.) (Def. 56.1, ¶ 22; Pl. 56.1, ¶ 22.) On September 27, 2012, she applied for the position of Manager of Customer Service and Terminal Operations. (Def. 56.1, ¶ 53; Pl. 56.1, ¶ 53.)

         On September 28, 2012, Tracy Hessel-Andor, the Human Resources Business Manager responsible for filling the LTM position, wrote to plaintiff, informing her that she would not be offered an interview. (Def. 56.1, ¶ 21; Pl. 56.1, ¶ 21.) Hessel- Andor's note asserted that plaintiff did not meet “the requirements listed in the bulletin” because she had not been in her current position “for 12 months immediately preceding the posting close date.” (Zabell Declaration, Ex. 14; McCaffrey Declaration, Ex. H.)

         On October 9, 2012, plaintiff sent Hessel-Andor an email, requesting “some clarification” of the LIRR's policy. (Def. 56.1, ¶ 35; Pl. 56.1, ¶ 35; Zabell Declaration, Ex. 16; McCaffrey Declaration, Ex. I.) In that email, which is included in Exhibit 16 to the Zabell Declaration and Exhibit I to the McCaffrey Declaration, plaintiff questioned whether the 12-month requirement applied to persons who had never applied for, but had been reassigned to, their current position. Plaintiff implied that the 12-month requirement had not previously been applied to such individuals, stating: “I am not sure if you are aware, but it has been confirmed to me that there have been other managers in the same situation as this.” (Zabell Declaration, Ex. 16; McCaffrey Declaration, Ex. I.) A week later, Hessel-Andor responded to plaintiff's email by forwarding a memorandum authored by Kathleen M, Meilick, the Senior Director of Human Resources. (Zabell Declaration, Ex. 16; McCaffrey Declaration, Ex. I.) That memorandum, which is attached to the McCaffrey Declaration as Exhibit J, responded to plaintiff's “request for clarification” by providing two reasons for the decision not to interview plaintiff for the LTM position. First, Meilick elaborated on the explanation provided by Hessel-Andor, stating that the “LIRR's corporate policy on ‘Filling MPA Positions'” required that she be in her current position for 12 months. Second, the memorandum stated: “[S]ince you are currently on a performance improvement plan, you will not be considered for any career opportunity bulletins until you receive a 3.0 or better on your annual performance evaluation.” (Id.)

         Plaintiff also did not receive an interview for the position of Manager of Customer Service and Terminal Operations. According to Mary L. Centauro, the Human Resources employee responsible for filling that position, plaintiff was ineligible for the same two reasons set forth in the Meilick memorandum: (1) she did not meet the 12-month requirement and (2) was on a PIP. (Declaration of Mary L. Centauro dated Jan. 15, 2016, ¶¶ 9, 12-13.) However, there is no indication that plaintiff was ever contacted by Human Resources with respect to this application.

         Fraser I

         On November 21, 2012, plaintiff commenced Fraser I, which alleged gender discrimination and retaliation in violation of Title VII, the NYSHRL and the NYCHRL. The complaint did not specify the retaliatory acts, alleging only that plaintiff had been “retaliated against by defendant on the basis of her lawful complaints to the Equal Employment Opportunity Commission regarding the acts of gender discrimination to which plaintiff was subjected . . . .” (Complaint in Fraser I, ¶¶ 52, 56, 60.)

         On January 3, 2013, before a responsive pleading was filed, plaintiff amended her complaint. The amended pleading added two new causes of action: one alleging a violation of the Equal Pay Act, 29 U.S.C. § 206(d), and another alleging a violation of New York Labor Law § 194. The allegations relating to the retaliation claims were unchanged.

         The Next Two Job Applications

         In September 2013 and January 2014, plaintiff again applied for positions within the LIRR's Transportation Services Department. In September 2013, she applied for a position as a Superintendent. (Def. 56.1, ¶ 90; Pl. 56.1, ¶ 90.) On October 21, 2013, Centauro, the Human Resources employee responsible for filling the Superintendent position, sent plaintiff a rejection letter. That letter, which is attached to the McCaffrey Declaration as Exhibit Q, stated, in pertinent part: “[W]e have determined that our needs can best be met with another candidate.” In January 2014, plaintiff again applied for the position of Manager of Customer Services and Terminal Operations. (Def. 56.1, ¶ 113; Pl. 56.1, ¶ 113.) On February 21, 2014, Centauro sent plaintiff a letter stating that she would not be offered an interview because “it has been determined that you do not meet the requirements listed in the bulletin due to attendance.” (McCaffrey Declaration, Ex. V.)

         The Second Charge

         On March 7, 2014, plaintiff filed charge of discrimination with the EEOC and the SDHR (hereafter, the “Second Charge”), alleging retaliation. The Second Charge - which is attached to the Zabell Declaration as Exhibit 5 and attached to the McCaffrey Declaration as Exhibit W - consists of a completed form and a five-page affidavit executed by plaintiff. The form itself does not provide any particulars regarding the retaliation, but refers the reader to the attached affidavit. The form does, however, specify that the retaliation occurred from September 27, 2013, to February 21, 2014.

         The affidavit specifically alleges that plaintiff has been “retaliated against by being denied the opportunity to interview for available positions” for which she was qualified. (Plaintiff's Affidavit sworn Mar. 7, 2014 (attached to the Second Charge), ¶ 27.) The affidavit contains allegations concerning all four job applications discussed above. With respect to the application for Superintendent, the affidavit alleges that plaintiff's applied for the position on September 23, 2013; that the posting for the position closed on September 27, 2013; and that plaintiff “did not receive a response from Respondent regarding the status of this application.” (Id., ¶ 23.) The affidavit contains no reference to Centauro's rejection letter to plaintiff dated October 21, 2013.

         In contrast, the affidavit not only mentions, but quotes from, Centauro's letter dated February 21, 2014, in which Centauro stated that plaintiff was ineligible for the position of Manager of Customer Service and Termination Operations “due to attendance.” (Id., ¶ 25.) Plaintiff specifically alleges that “[t]his letter is false and pretextual.” (Id., ¶ 26.) Plaintiff claims that she was never informed that she had “attendance issues” and never received “any warning to that effect.” (Id.)

         The Fifth Job Application

         On or about July 18, 2014, plaintiff applied for the position of Manager - Transportation Crew Management Services. (Def. 56.1, ¶ 142; Pl. 56.1, ¶ 142.) One week later, Lucille Marino, the Human Resources Business Manager responsible for filling the position, wrote to plaintiff, informing her that she would not be offered an interview. (Def. 56.1, ¶ 141; Pl. 56.1, ¶ 141; Zabell Declaration, Ex. 18; McCaffrey Declaration, Ex. AA.) The letter stated, in pertinent part: “We have reviewed your resume and work history and based on the information presented, it has been determined that you do not meet the requirements listed in the bulletin due to your attendance record.” (Zabell Declaration, Ex. 18; McCaffrey Declaration, Ex. AA.)

         This Action

         On December 11, 2014, plaintiff commenced this action, alleging retaliation in violation of Title VII, the NYSHRL and the NYCHRL. The three causes of action allege that plaintiff was “retaliated against by defendant in response to her lawful complaints” to the EEOC, the SDHR, or both, and “the subsequent filing of her federal court lawsuit regarding the gender discrimination to which plaintiff was subjected . . . .” (Complaint, ¶¶ 42, 46, 50.) The causes of action themselves do not identify specific retaliatory acts.

         The “Facts” section preceding the causes of action, however, specifically alleges that plaintiff was “unlawfully retaliated against by being denied the opportunity to interview for available positions for which she was qualified.” (Id., ¶ 39.) This section contains allegations relating to all five of the job applications discussed above: the July 7, 2012, application for LTM; the September 27, 2012, application for Manager of Customer Service and Terminal Operations; the September 23, 2013, application for Superintendent; the January 31, 2014, application for Manager of Customer Service and Terminal Operations and the July 15, 2014, application for Manager -Transportation Crew Management Services. With respect to the rejection of the first of these applications, the pleading alleges that plaintiff “was never provided an explanation as to what . . . warranted her placement” on the PIP which, along with the 12-month requirement, prevented her from receiving an interview. The pleading alleges that plaintiff never received any response to the second and third applications. (Id., ...


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