Campbell v. New York City Transit AuthorityCampbell v. New York City Transit Authority
MEMORANDUM & ORDER
Plaintiff Collette Campbell, currently proceeding pro se, brings the above-captioned action against the New York City
I. Background
a. The parties
The New York City Transit Authority (“Transit Authority” or “Defendant”) is a public authority in New York City which operates public transportation systems, including the New York City subways and buses and the Staten Island Railway.
Plaintiff, born in 1956, was employed with the Transit Authority from October 1983 through August 2011. (Def. 56.1 ¶¶ 25, 28; Pl. 56.1 ¶¶25, 28; Pl. Aff. ¶2.) Plaintiff began working for Defendant as a railroad clerk, which involved working in a token booth and selling tokens for access to the New York City, subway system. (Def. 56.1 ¶ 26; Pl. 56.1 ¶ 26.) Plaintiff was eventually promoted to supervisor of stations as a Station Supervisor Level I, or “Level I Supervisor.” (Def. 56.1 ¶ 27; Pl. 56.1 ¶ 27.) Generally, a Level I Supervisor, amongst other things,’ supervises staff in customer service, operation of station controls, and the cleaning of stations. (Def. 56.1 ¶ 29; Pl. 56.1 ¶29.) Plaintiff was subsequently reassigned to a Station Supervisor Level II, or “Level II Supervisor,” position. (Def. 56.1 ¶27; Pl. 56.1 ¶ 27.)
As a Level II Supervisor, Plaintiffs responsibilities included supervising Level I Supervisors and employees charged with cleaning subway stations, known as “cleaners.” (Def. 56.1 ¶ 6; Pl. 56.1 ¶ 6.) Level II Supervisors are also expected to conduct inspections of station and station equipment, supervise and assign station personnel, and “conduct[ ] investigations.” (Def. 56.1 ¶ 29; Pl. 56.1 ¶ 29.) Part of Plaintiffs job was to ensure that cleaners properly performed their duties, and to ensure that station personnel followed the rules and regulations. (Def. 56.1 ¶¶ 31-33; Pl. 56.1 ¶¶ 31-33.) Plaintiff believed that she had the authority to initiate disciplinary procedures, or to take other appropriate action, against her subordinates if they violated rules and regulations or engaged in misconduct. (Def. 56.1 ¶¶ 35, 38; Pl. 56.1 ¶¶ 35, 38.) Disciplinary procedures she employed included verbal instructions or reinstruction. (Def. 56.1 ¶ 36; Pl. 56.1 ¶ 36.) Plaintiff would also investigate potential misconduct and obtain written statements from complainants or any witnesses to the misconduct on pre-printed Transit Authority statement forms, known
As a Level II Supervisor, Plaintiff was represented, for the purposes of collective bargaining and disciplinary proceedings, by Local 106 of the Transport Workers Union, which was also known as the Transit Supervisors’ Organization (“TSO”). (Def. 56.1 ¶ 30; Pl. 56.1 ¶ 30.) Cleaners, Plaintiffs supervisees, were represented by Local 100 of the Transport Workers Union. (Def. 56.1 ¶ 44; Pl. 56.1 ¶44.) This is a different union than that which represented Plaintiff. (Def. 56.1 ¶ 44; Pl. 56.1 ¶ 44.) Each of the unions was subject to a different collective bargaining agreement, but both agreements contained disciplinary procedures. (Aff. of Cynthia Davis ¶ 3 (“C. Davis Aff.”), Docket Entry No. 79.)
Jimmy Davenport, who is not a party to this action, was a cleaner employed by Defendant. (Def. 56.1 ¶ 8; Pl. 56.1 ¶ 8.)
b. March 2009 reporting location and Davenport comment
In March of 2009, Plaintiff was able to choose a new “preference” for her position, meaning she could select a new reporting location, a “tour” (or regular shift), and a regular work scheduling, consisting of five consecutive work days and two consecutive days off (“regular days off’). (Def. 56.1 ¶¶ 45-48; Pl. 56.1 ¶¶ 45-48.) Plaintiff selected the Utica Avenue Station on the A line (“Utica Station”) as her reporting location, which was different from her previous location. (Def. 56.1 ¶48; Pl. 56.1 ¶ 48.) Plaintiffs “tour” was 10:00 PM to 6:00 AM, and her regular days off were Friday and Saturday. (Def. 56.1 ¶49; Pl. 56.1 ¶ 49.) At Utica Station, Plaintiff ensured that the cleaners, she supervised reported for duty in uniform, and had their pass, badge and ID each day. (Def. 56.1 U 50; Pl. 56.1 ¶ 50.) When cleaners arrived at the beginning of their shifts, which corresponded to the beginning of Plaintiffs shift, they reported to Plaintiffs office, where she would perform a “uniform inspection,” checking that each cleaner was in uniform and possessed the proper credentials. (Def. 56.1 ¶ 51; Pl. 56.1 ¶ 51.) She would also require each cleaner to sign in on a sheet. (Def. 56.1 ¶ 51; Pl. 56.1 ¶ 51.) After the uniform inspection and sign-in, the cleaners would wait in the lunchroom while Plaintiff cross-referenced the sign-in sheet with her “coverage sheet,” which listed the names of cleaners scheduled to work that evening, and recorded station assignments. (Def. 56.1 ¶¶ 52-54; Pl. 56.1 ¶¶ 52-54.) This process took approximately fifteen minutes. (Def. 56.1 ¶ 54; Pl. 56.1 ¶ 54.) After Plaintiff checked that all scheduled employees were present, Plaintiff would convene a meeting to advise the cleaners of their work assignments for the shift. (Def. 56.1 ¶¶ 52-56; Pl. 56.1 ¶¶ 52-56.) Plaintiff would also read a “safety tip of the day.” (Def. 56.1 ¶ 56; Pl. 56.1 ¶ 56.) Plaintiffs predecessor at Utica Station typically held a similar meeting in the
After Plaintiff began working at Utica Station in March 2009, several cleaners, including Davenport, complained about Plaintiffs regular uniform inspection. (Def. 56.1 ¶¶ 63-64; Pl. 56.1 ¶¶ 63-64.) To address the complaints, Superintendent Justin Hyppolyte held a meeting with Plaintiff and the cleaners to clarify the rules and regulations for everyone.
c. August 6, 2009 incident
On August 6, 2009, Plaintiff was still employed as a Level II Supervisor at Uti-ca Station. (Def. 56.1 ¶ 6; Pl. 56.1 ¶ 6.) That day, Plaintiffs tour of duty was her regular 10:00 PM to 6:00 AM. (Def. 56.1 ¶ 7; Pl. 56.1 ¶ 7.) Around 10:00 PM, Plaintiff was in her office when Davenport reported for duty. (Def. 56.1 ¶ 78; Pl. 56.1 ¶ 78.) Plaintiff checked the “coverage sheet” and noted that Davenport was on “comp status,” meaning he was not scheduled for work that evening and was not cleared to work. (Def. 56.1 ¶ 79; Pl. 56.1 ¶¶ 72, 79.) Plaintiff informed Davenport that he had clearance to resume work on August 7, 2009, not August 6, 2009. He left her office before she could clarify with other Transit Authority officials whether he could work the shift beginning that evening, August 6, 2009.
Shortly thereafter, Plaintiff went to the lunchroom to look for another cleaner, and saw Davenport in the lunchroom. (Def. 56.1¶ 86; Pl. 56.1 ¶ 86.) Plaintiff instructed Davenport to leave the premises, as he was not authorized to work. (Def. 56.1 ¶ 88; Pl. 56.1 ¶ 88.) As Plaintiff recalls, Davenport responded with something like “who are you going to get to make me leave? I am not your child.... ” (Def. 56.1 ¶ 88; Pl. 56.1 ¶ 88; Tr. of Dep. of Collette Campbell (“Pl. Dep.”), annexed as Def. Ex. S, 105:2-12.) Davenport reported that Plaintiff ordered him out of the lunchroom. When he asked why she was being rude, she “told me to just leave right now and I said I was[,] she then replied T better.’ ” (Def. 56.1 ¶ 89; Pl. 56.1 ¶ 89; G-2 Correspondence Sheet of Jimmy Davenport, Def. Ex. G.) Approximately eight other cleaners were in or near the lunchroom at the time of the incident. (Def. 56.1 ¶87; Pl. 56.1 ¶ 87; G-2 Correspondence Sheets, Def. Ex. H.)
Almost immediately after the incident in the lunchroom, Plaintiff returned to her office. (Def. 56.1 ¶ 92; Pl. 56.1 ¶ 92.) Davenport entered behind her, and Plaintiff and Davenport had a verbal exchange. (Def. 56.1 ¶ 9; Pl. 56.1 ¶ 9.) Davenport and Plaintiff filed divergent reports regarding
Plaintiff called station command and also called her union representative, Michael Troina, from her office, and activated-the “emergency booth communications system,” which connects to Transit Authority rail control, from the station booth. (Def. 56.1¶¶ 101-02; Pl. 56.1 ¶¶ 101-02.) Plaintiff requested police assistance. (Pl. 56.1 ¶ 106.) Plaintiff remained in the booth area until her supervisor, Denise Gregg, arrived. (Def. 56.1 ¶ 110; Pl. 56.1 ¶ 110.) Plaintiff and Gregg went to Plaintiffs office to complete her G-2 form,
At approximately 12:55 AM on August 7, 2009, Gregg informed Plaintiff that she was being “held out of service,” meaning Plaintiff was not to finish her scheduled shift for the day.
Later that morning, Plaintiff spoke with Troina, her union representative. She informed Cynthia Davis
Davenport and Plaintiff each filed reports regarding the incident; Plaintiff claimed that Davenport had threatened her, and Davenport claimed that Plaintiff had cursed at him. (Def. 56.1 ¶ 11; Pl. 56.1 ¶ 11.) Plaintiff claims that Davenport’s report was “fabricated.” (Pl. 56.1 ¶ 12c.) While Plaintiff had been held out of service almost immediately following the incident, (Def. 56.1 ¶¶ 116-18; Pl. 56.1 ¶¶ 13, 116-18), Davenport was held out of service the first day he returned to work, August 9, 2009,
d. August 12, 2009 meeting and disciplinary charges
On August 12, 2009, Plaintiff reported to Cynthia Davis in Labor Relations, and brought with her the requested note from her doctor, dated August 7, 2009, which advised that she was medically able to return to work that day, August 12.
At the August 12, 2009 hearing, Cynthia Davis explained that because there were no witnesses to the incident in the office, there was a “credibility issue” between Plaintiff and Davenport. Cynthia Davis explained that Davenport’s disciplinary charges would be presented to an arbitrator prior to Plaintiffs charges, and commented that if Davenport’s charges were sustained after an arbitration hearing, she would “take care of’ the charges against Plaintiff. (Def. 56.1 ¶ 129; Pl. 56.1 ¶ 129.) On August 18, 2009, what is known as a “step two” hearing in the grievance process was held before a hearing officer, which Plaintiff, Troina, and Cynthia Davis attended. (Def. 56.1 ¶ 132; Pl. 56.1 ¶ 132.) The penalty of dismissal was sustained. (Pl. 56.1 ¶ 133; Disciplinary Notification for Collette Campbell, Def. Ex. L at P094.) Implementation of the penalty was delayed, however, pending resolution of Plaintiffs grievance before a neutral arbitrator. {In re Arbitration between Manhattan & Bronx Surface Transp. Op. Auth. and Local 106, Transit Supervisors Org., Def. Ex. P. at 7.) At the meeting] Plaintiffs suspension was lifted and she was permitted to return to work the following day. (Def. 56.1 ¶ 133; Pl. 56.1 ¶ 133; Daily Notice dated Aug. 19, 2009, Def. Ex. O.)
At the August 12, 2009 meeting, Plaintiff told Cynthia Davis that she had sustained an injury on duty on August 6, 2009.
Although Plaintiff presented a note from her doctor on August 12, 2009 which indicated she was able to return to work, Plaintiff remained on leave, collecting workers’ compensation benefits, until April 5, 2010. (Def. 56.1 ¶ 15; Pl. 56.1 ¶ 15a-c.) Plaintiff alleges that the period from October 7, 2009, through December 29, 2009, was qualifying medical leave under the Family and Medical Leave Act (“FMLA”). (Pl. 56.1 ¶ 18.) During the course of Plaintiffs leave, Davenport’s disciplinary
Plaintiff returned to work from medical leave on April 5, 2010, and on July 6, 2010, an arbitration hearing was held to review her disciplinary charge relating to the August 6, 2009 incident. (Def. 56.1 ¶ 145; Pl. 56.1 ¶ 145.) Although Plaintiff contends that the hearing was “unlawful discipline” and was “an improper tri-partite hearing consistent with the [Station] Supervisor Level I’s” collective bargaining agreement,
e. Workers’ compensation claim
Plaintiff completed an injury on duty form on August 7, 2009.
At a hearing held on February 8, 2010, before the Workers’ Compensation Board, the judge presiding over the hearing found that Plaintiff was entitled to workers’ compensation payments for the period of October 7, 2009 through November 30, 2009,
f. January 2010 investigation into chronic absenteeism
During the winter of 2009, the Transit Authority’s Sick Investigation Unit was directed to review the sick leave usage of various subway supervisors, including Level I and Level II Supervisors. (Aff. of Denise Washington Aff.. (“Washington Aff.”) ¶¶ 4-7, Docket Entry No. 80.) As a result of the investigation, many supervisors, including Plaintiff, were served with disciplinary charges for chronic absenteeism.
g. Plaintiffs retirement
On March 8, 2010, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Def. 56.1 ¶ 19; PL 56.1 ¶ 19.) In the charge, Plaintiff asserted claims of
Plaintiff submitted her retirement papers in May or June of 2011, and her retirement became effective on August 29, 2011. (PI. Aff. ¶ 2; PI. Dep. 14:10-15:13.)
II. Discussion
a. Standard of review
Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, “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); see also Bronzini v. Classic Sec., LLC,
The Second Circuit has cautioned that “ ‘[wjhere an employer acted with discriminatory intent, direct evidence of that intent will only rarely be available, so affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination.’ ” Taddeo v. L.M. Berry & Co.,
b. Hostile work environment
Plaintiff claims that the actions of Davenport and of Defendant, including and following the August 6, 2009 incident, created a hostile work environment “and affected the terms and condition[s] of [Plaintiffs] employment.” (PI. Aff. ¶ 2.) Plaintiff argues that Davenport subjected her to “sexual ... harassment” through his comments on August 6, 2009. (PI. 56.1 ¶ 97;
To establish a hostile work environment claim under Title VII and the ADEA, a plaintiff must provide evidence “that the complained of conduct: (1) is objectively severe or pervasive — that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiffs [gender or age].” Sotomayor v. City of New York,
Plaintiff has failed to provide evidence that would establish a hostile work environment claim under either Tile VII or the ADA. Aside from broad allegations that Defendant created a work environment that was hostile to Plaintiff on the basis of her age and sex, the only evidence of conduct Plaintiff presents relates to Davenport’s conduct in March of 2009 and on August 6, 2009. Furthermore, Plaintiff has presented no evidence, aside from the fact that Davenport commented on the color of her hair
c. Title VII, ADA, and ADEA discrimination claims
Plaintiff argues that Defendant used the August 6, 2009 incident and Plaintiffs resulting diagnosis of post-traumatic stress disorder and hypertension to “unlawfully retaliate and discriminate” against Plaintiff. (Pl. Aff. ¶ 2.) Plaintiff argues that Defendant applied a different decision-making and disciplinary process to her as a result of the incident, and alleges it was discriminatory not to subject her and Davenport to same process. (Pl. Aff. ¶ 9b; Pl. 56.1 ¶ 18.) Plaintiff also contends that her 2010 write-up for chronic absenteeism was a pretext, though she does not allege what the write-up was intended to conceal. (Pl. Aff. ¶ 5c.) Broadly, Plaintiff asserts claims of gender, disability, and age discrimination.
Claims of employment discrimination under Title VII, the ADA, and the ADEA are assessed using the burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green,
If the plaintiff satisfies this initial burden, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions. Hicks,
i. Prima facie case of discrimination
1. Protected group and qualification
Plaintiff raises claims of discrimination on the basis of her gender, disability, and age. It is not disputed that Plaintiff is a woman, and Defendant does not appear to dispute that Plaintiff was qualified for her position. Plaintiff brings her disability claim on the grounds that Defendant
2. Adverse action
• Plaintiff argues that she was subject to several adverse actions as a result of discrimination based on her gender, disability and age. She points to six events in particular: (1) Gregg held Plaintiff out of service following the August 6, 2009 incident; (2) Defendant served her with disciplinary charges as a result of the incident; (3) Defendant pursued the charges against her — which the Court construes to include the August 12-18 suspension; (4) Defendant failed to investigate, and presumably discredit, Davenport’s allegations against Plaintiff; (5) Defendant controverted Plaintiffs workers’ compensation claim; (6) Defendant served Plaintiff with disciplinary charges for chronic absenteeism. Plaintiff argues that she “involuntarily quit/retired” as a result of all of Defendant’s actions, and was thus constructively discharged.
“An adverse employment action is a ‘materially adverse change in the terms and conditions of employment,’ which can include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, [or] significantly diminished material responsibilities,’ among other possibilities.” Adams,
A. August 6, 2009 discipline
As a result of the August 6, 2009 altercation with Davenport, Plaintiff was held out of service in the early hours of August 7, 2009, was served with disciplinary charges on August 12, 2009, and was suspended from August 12, 2009 through August 18, 2009. It is not clear from the record whether the holding out of service or the suspension resulted in lost pay or another material loss of benefits. Construing the facts in the light most favorable to Plaintiff, a reasonable jury could conclude that her removal from work on August 7, 2009 and suspension constituted an adverse employment action.
Instituting disciplinary proceedings which result in a suspension without pay can constitute an adverse employment action. See Weber v. City of New York,
Because suspension without pay typically meets the “materially adverse” standard, Plaintiff has presented a question as to whether these actions could constitute adverse actions under Title VII, the ADA, and the ADEA.
B. Other actions
As for the disciplinary charges served on Plaintiff for chronic absentee
Furthermore, Plaintiff cannot show that the failure to investigate Davenport’s claim against her affected any of her tangible job benefits, and thus cannot show that this was an adverse action. See Wright v. Monroe Cmty. Hosp.,
C. Constructive discharge
Plaintiff contends that her retirement was not voluntary, and was a constructive discharge. (Pl. 56.1 ¶ 151.) A constructive discharge is “functionally the same as an actual termination” and therefore is considered an adverse employment action. Pa. State Police v. Suders,
Constructive discharge requires evidence (1) that the employer acted deliberately or intentionally in bringing about the complained of work conditions, and (2) that the conditions were “intolerable.” Petrosino v. Bell Atl.,
Plaintiff has not shown that her retirement was involuntary or that she was constructively discharged. Plaintiff argues that she became a “lame duck” supervisor following the August 6, 2009 incident because the altercation with Davenport, and her need to fight disciplinary charges following the incident, undermined her authority with her subordinates, making her workplace intolerable. At oral argument, Plaintiff indicated that she felt that, as a supervisor, she should not have been disciplined in the same way Davenport was, further suggesting that her authority was undermined. Plaintiff has not shown any evidence that her work environment was intolerable. At most, the evidence shows that her working conditions may have been unpleasant. Plaintiff, however, has not pointed to any incident involving her other subordinates or supervisees to implicate the fact that her authority was undermined. Plaintiff’s belief that she was a “lame duck” or that her authority was undermined is insufficient to show that her workplace was intolerable. While it may have been an unpleasant environment for Plaintiff because of her belief, “a constructive discharge cannot be proven merely by evidence that ... the employee’s working conditions were difficult or unpleasant.” Miller,
Moreover, Plaintiff has not presented any evidence that would support a finding that Defendant deliberately brought about the condition she complained of. See Adams, 560 Fed-Appx. at 50 (finding no material question of fact as to whether the
3. Inference of bias or discrimination
Plaintiff must further show that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. Inference of discrimination “is a ‘flexible [standard] that can be satisfied differently in differing factual scenarios.’ ” Howard v. MTA Metro-N. Commuter R.R.,
Plaintiff has shown no connection between her removal from service or suspension and her gender, age, or disability. Plaintiffs various arguments about the way she was treated following the August 6, 2009 incident do not raise an inference of discrimination. Plaintiff' argues that she and Davenport, a younger man, were similarly situated
Plaintiff has done no more than point to various ways in which she feels she was mistreated and argue that it must have been because of her sex, age, or disability. This is not sufficient to sustain a claim of discrimination. See Howard v. City of New York,
Because Plaintiff has failed to meet her burden to establish a prima facie case of gender, age, or disability discrimination under Title VII, the ADEA, or the ADA, the Court grants Defendant’s motion for summary judgment on these claims.
ii. Failure to accommodate under the ADA
Plaintiff alleges that Defendant failed to accommodate her disability, but provides no facts in support of this allegation, nor has she provided any argument in opposition to the motion for summary judgment as to her claim of failure to accommodate. Failure to accommodate is a type of disability discrimination that also follows the McDonnell Douglas burden-shifting scheme. In order to establish a prima facie case for failure to accommodate, a plaintiff must show that (1) she is a person with a disability under the meaning of the ADA, (2) her employer is a covered entity, (3) the plaintiff could perform the essential functions of her job with an accommodation, and (4) the defendant refused to make such an accommodation. McBride v. BIC Consumer Products Mfg. Co., Inc.,
d. Retaliation
Plaintiff argues that Defendant used the August 6, 2009 incident and Plaintiffs resulting diagnosis of post-traumatic stress disorder and hypertension “to unlawfully
Claims of retaliation for engaging in conduct protected by Title VII, the ADEA, and the ADA are examined under the McDonnell Douglas burden-shifting - test. See Summa, 708 F.3d- at 125 (“The burden-shifting framework laid out in McDonnell Douglas ... governs retaliation claims under both Title VII and the NYSHRL.” (citing Schiano v. Quality Payroll Sys., Inc.,
If the plaintiff establishes a prima facie case under the test, “then a presumption of retaliation arises and the employer must articulate a legitimate, non-retaliatory reason for the action that the plaintiff alleges was retaliatory.” Fincher,
i. Prima facie case
1. Protected activity, of which employer was aware
Defendant contends that Plaintiff did not engage in protected activity because Plaintiff did not do anything more than write up her subordinate for a disciplinary violation, which she was required to do as a Level II Supervisor. (Def. Mem. 16-17.) Plaintiff has, however, produced evidence that she believed she was reporting discrimination as protected by the statute. Plaintiff has presented evidence that she complained to Hyppolyte regarding Davenport’s March 2009 comments, that she complained to Gregg and Hyppolyte regarding what she perceived to be Davenport’s harassment on August 6, 2009, and has presented her own testimony that she complained of ageist and sexist working conditions. “It is well-established that a ‘plaintiff may prevail on a claim for retaliation even when the underlying conduct complained of was not in fact unlawful so long as he can establish that he possessed a good faith, reasonable belief that the underlying challenged actions of the employer violated [the] law.’ ” See La Grande v. DeCrescente Distrib. Co.,
Assuming, without deciding, that Plaintiffs complaints constituted protected ac
2. Materially adverse action
Adverse employment action is broader in the retaliation context than the discrimination context, and, therefore, in some instances, a plaintiff can establish an adverse action in a retaliation claim, even if she cannot establish a discrimination claim. Hicks v. Baines,
Plaintiff claims that she suffered various incidents of retaliation following the August 6, 2009 incident, and that “Defendant! ] used the events of August 6, 2009 to ... unlawfully retaliate against her resulting in her being constructively discharged from her employment.” (PI. 56.1 ¶ 5.) To support this contention, Plaintiff points tó (1) Gregg’s decision to hold her out of service, (PI. 56.1 ¶ 8a); (2) the disciplinary charges following the August 6, 2009 incident, including her suspension and the recommendation she be terminated; (3) the improper use of an arbitration panel, rather than a single arbitrator, to adjudicate her grievance of the August 6, 2009 disciplinary charge; and (4) what she contends was her “constructive discharge.” Plaintiff argues these actions led her to become a “lame duck” supervisor following the incident, meaning she believes her authority was undermined, which created an intolerable environment for her. (Id.) She further contends that the service of disciplinary charges on August 12, 2009, and the later service of disciplinary charges for chronic absenteeism and sick leave abuse were retaliatory. (PI. 56.1 ¶ 17.) Plaintiff also appears to argue that Defendant’s initial denial of workers’ compensation benefits, decision to controvert her workers’ compensation claim, and decision to withhold differential payments during her period of leave, were all retaliatory.
3. Causal Connection
“[P]roof of causation can be shown either: (1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by the defendant.” Gordon v. N.Y.C. Bd. of Educ.,
Plaintiff has not shown any circumstances from which a reasonable jury could conclude that there was a causal connection between any of the alleged adverse actions and her alleged protected activities, that is, her complaints of discrimination. Treglia,
ii. Legitimate, non-discriminatory reason
Even assuming Plaintiff could show that there was a causal connection between any adverse action and her complaints, Defendant has proffered legitimate, non-discriminatory reasons for the various actions, including an attempt to resolve the credibility issue between Davenport and Plaintiff regarding their altercation through uniform and impartial application of the disciplinary procedures, (see Cynthia Davis Aff. ¶¶ 9-10, 14), evidence of Plaintiffs actual excessive absenteeism, (Disciplinary Notification for Col-lette Campbell dated Jan. 11, 2010, Def. Ex. R), and a belief that Plaintiff was not entitled to workers’ compensation as a result of her alleged injury arising from the altercation (Dep. of Saundra K. Davis (“S. Davis Dep.”) 44:20-45:13, 67:20-68:15, 73:4-21, annexed as PI. Ex. B, Docket Entry No. 75-2.).
iii. Pretext
Plaintiff has not provided any facts beyond her speculation and vague, conclusory allegations that retaliatory motive played any role in Defendant’s actions against her, nonetheless motive sufficient to show retaliatory intent within the meaning of the ADA, Title VII, or the ADEA. To survive summary judgment as to her ADA retaliation claim, Plaintiff would at least have to show that that retaliatory intent was a “motivating factor” in any action taken against her, if not the but-for cause of that action. Sherman,
e. Institutional discrimination and retaliation
Plaintiff includes a claim for “institutional discrimination” and “institutional retaliation” against defendant. (Am. Compl. 3.) In her charge of discrimination, filed with the EEOC, Plaintiff asserted that Defendant “fosters institutional animus and retaliation against disabled employees and older employees, who are approaching early retirement eligibility.” (EEOC Charge 1.) Plaintiff contends that “[s]enior managers tolerate, ratify and are complicit in [ ] ADEA, Title VII and ADA discrimination and retaliation.” (Id.) To the extent Plaintiff attempts to assert that Defendant systematically discriminates against persons of her gender, in her age group, or with like disabilities, Plaintiff presents no evidence as to how Defendant treats other individuals in those protected classes. See Sosa v. Rockland Cnty. Cmty. Coll., No. 04-CV-8722,
III. Conclusion
For the foregoing reasons, the Court grants Defendant’s motion for summary judgment in its entirety. The Clerk of the Court is directed to close this case.
SO ORDERED.
Notes
. Plaintiffs opposition to Defendant’s motion for summary judgment also references a number of issues regarding the extent of Defendant's disclosures and other discovery disputes. (See, e.g., Pl.- Aff. ¶¶ 6-8.) By order dated November 6, 2013, Defendant was ordered to provide all outstanding discovery to Plaintiff on or before December 6, 2013. (Docket Entry No. 69.) Both parties were directed to contact the Court with any outstanding discovery disputes. (Id.) Given that Plaintiff had ample opportunity to raise her discovery disputes during the discovery period, and chose not to raise them with the Court as directed, the Court declines at this juncture to entertain her allegations that De- ' fendant failed to provide her with all necessary discovery.
. Plaintiff objects to the affidavit submitted by Cynthia Davis on the ground that it "contorts” her deposition testimony of September 4, 2013. (Pl. Aff. ¶ 4a.) Plaintiff does not allege that the affidavit directly contradicts Cynthia Davis’s deposition testimony, and thus the Court declines to disregard the affidavit as Plaintiff suggests. See Gorzynski v. JetBlue Airways Corp.,
. At oral argument, Plaintiff indicated this meeting may have been in June 2009.
. The shift was from 10:00 PM on August 6, 2009 through 6:00 AM on August 7, 2009.
. A "G-2 form” or "Correspondence Sheet” is a pre-printed Transit Authority statement form used by complainants or witnesses to report and document misconduct. (Def. 56.1 ¶¶ 39-40; Pl. 56.1 ¶¶ 39-40.)
. Hyppolyte has retired and was unavailable to provide testimony.
. Neither party indicated whether Plaintiff was paid for the remainder of her shift.
. Plaintiff asserts that Gregg held her out of service only after Plaintiff reported the incident with Davenport and requested medical attention. (PL 56.1 ¶ 13c.)
. The second G-2 form may have been composed while Plaintiff was in the hospital that evening. (See Pl. 56.1 ¶ 116 (stating that "Mr. Hyppolite [sic] claims he did not receive the fact [sic] and a second statement was written while [P]laintiff was at the hospital.”).)
. Plaintiff contends that Gregg delayed taking her to the hospital. (Pl. 56.1 ¶ 13a.)
. Cynthia Davis works for Defendant in the Office of Labor Relations. Defendant also employs Saundra Davis, a manager of workers’ compensation. (Dep. of Saundra K. Davis, Pl. Ex. B ("S. Davis Dep.”) 6:17-22, Docket No. 75-2.) For clarity, when referring to either Ms. Davis, the Court refers to her by her full name.
. ' During her deposition, Cynthia Davis was asked to review a document, reporting the August 6, 2009 incident, which indicated that Davenport could not be held out of service on August 6, 2009 because he was on "comp status.” (Tr. of Dep. of Cynthia Davis, Pl. Ex. D ("C. Davis Dep.”) 67:2-19; Pl. Ex. E at CLD74-CLD75.) Plaintiff also indicated that Davenport was held out of service on the first day of his return to eligibility for service, August 9, 2009. (Pl. 56.1 ¶ 12d.)
.Plaintiff disputes that the note contained an accurate representation of her condition, as the note was written on August 7, 2009, and Plaintiff had a follow-up appointment with her doctor and with a cardiologist on August 11, 2009, and the August 7, 2009 note was not updated in light of that appointment. (Pl. 56.1 ¶ 14b.)
. Plaintiff indicates that she was unable to work during this time, regardless, and asserts that her time out of work during the period of August 12, 2009 through August 18, 2009, may have later been classified as compensation time. (Pl. Dep. 193:19-194:4.) Plaintiff was awarded workers’ compensation for the period August 7, 2009 through April 5, 2010. (Workers' Compensation Case History, Pl. Ex. E, at CLD58.)
. In Cynthia Davis’s deposition, Plaintiff also asked Davis if she gave Plaintiff a disciplinary action notice “on August 12, 2009, four days after” Davis had knowledge that Plaintiff had filed a workers’ compensation claim, reported a workplace violence incident, and reported "sexual and other discriminatory harassment.” Davis acknowledged that she did, to all three questions. (C. Davis Dep. 45:19-46:9.)
. At oral argument on March 11, 2015, Plaintiff informed the Court that Davenport’s initial disciplinary charges also recommended his dismissal. Plaintiff explained that her supervisors had requested she testify at Davenport’s disciplinary hearing, to resolve the "credibility issue” earlier referenced by Cynthia Davis. Plaintiff, however, never testified against Davenport. Plaintiff explained that she was informed that Defendant did not want to have the disciplinary action pending until Plaintiff returned to work from leave, and decided to proceed with adjudicating his charges, which ended with the agreement by stipulation.
. Plaintiff was a Level II Supervisor at the time. (Pl. 56.1 ¶ 21(10).) Plaintiff has presented no evidence to the Court that this procedure was inappropriate or improper other than her own allegations. While the documents outlining disciplinary procedures for Level II Supervisors mention arbitration and do not mention a tri-partite panel, and the procedures for the Subway Supervisors Association do mention a panel, (compare Pl. Ex. G at MT18 with Pl. Ex. G at MT 22), Troina, Plaintiff's union representative, indicated that discussions between three arbitrators was normal practice, (Tr. of Dep. of Michael Troina, Pl. Ex. F, 76:45-78:7.) The Court does note that the arbitration decision was authored and signed only by Daniel F. Brent, "Impartial Chairman,” but it did contain the names of Aliaa Abdelrahman as an “authority-appointed arbitrator” and Troina as a "union-appointed arbitrator.” (Def. Ex. P at 2.) Neither signed the opinion. (Id.)
.Plaintiff asserts that Defendant improperly “controverted” her workers' compensation claim and provided the Workers’ Compensation Board "with distorted, falsified information.” (Pl. 56.1 ¶ 134.)
. The evidence indicates that approximately fifty supervisors were served with charges for sick leave- abuse. (C. Davis Aff. ¶ 15; Washington Aff. ¶ 7.)
. Exhibit R, submitted by Defendant in support of the motion for summary judgment, is a Disciplinary Notification for the chronic absenteeism charges served on Plaintiff. The document and attached printout from the Transit Authority’s automated timekeeping system supports Defendant's proposition that Plaintiff was absent sick without pay on six occasions from January 2009 through April 2009, and was sick for six days in May 2009. The records do not indicate whether the sick days in May 2009 were with or without pay.
. Plaintiff did not submit a memorandum of law in opposition to the motion for summary judgment, but frequently includes argument in her statement submitted pursuant to Rule 56.1 of the Local Rules of the United States District Courts for the Southern and Eastern Districts of New York.
. Plaintiff’s own account of the March 2009 incident indicates that the reference to the color of her hair was not related to her age, but rather to the way she supervised the cleaners at the station.
. At oral argument, Plaintiff was asked whether there were any other incidents, remarks, or anything else that she considered to have created or contributed to a hostile'environment. Plaintiff provided no additional evidence.
. The Court assumes, without deciding, that Defendant is covered by the ADA.
. It is questionable whether Plaintiff can establish a prima facie case of disability discrimination, because she has failed to produce any evidence that would support a finding that she suffered from or was regarded as suffering from a disability within the meaning of the ADA. See Cody v. Cnty. of Nassau,
. Plaintiff highlights that, in response to her Request for Admission No. 108, “Admit the fact that the plaintiff was a Station Supervisor Level II from 1986 until her involuntary retirement, constructive discharge effective on August 29, 2011,” (Request for Admission No. 108, Docket Entry No. 75-2, at ECF No. 91), Defendant responded "Admit,” (Response to Request for Admission No. 108, Docket Entry No. 88-2, at ECF No. 18). However, given that Defendant has at other times denied that Plaintiff was constructively discharged and has consistently denied any discriminatory motive, (e.g. Request for Admission Nos. 53, 85, 87, 95, 106, 107, Docket Entry No. 75-2), including a specific denial that Plaintiff's retirement was involuntary (Request for Admission No. 103, Docket Entiy No. 75-2), the Court declines to deem this admission dispos-itive.
. It is unclear what impact the suspension actually had on Plaintiff’s employment, given that she has presented her own testimony and a doctor’s note supporting her contention that she was unable to work on August 7, 2009 due to her medical condition, and has testified that she was unable to work on August 12, 2009 through August 18, 2009 — and in fact was awarded workers' compensation for that time — because of her injury on duty. Thus, there is a question as to what ultimate impact the decision to suspend her had on her employment. Furthermore, all disciplinary charges relating to the August 6, 2009 incident were ultimately reversed by a neutral arbitrator through the disciplinary grievance process. See Wallace v. Suffolk Cnty. Police Dep’t,
. The Court declines to decide whether Davenport, Plaintiffs subordinate, was similarly-situated to Plaintiff in respects relevant to the analysis here.
. Plaintiff also raised, in her deposition, that she requested a reassignment from Utica Station after the incident and was reassigned to various locations, including 14th Street, West 4th Street, South Ferry, Grand Central, and others. Plaintiff believed that transferring her was retaliatory. (Pl. Dep. 242:12-243:5.) A lateral transfer can constitute an adverse employment action. See Bowen-Hooks v. City of New York,
. While the disciplinary charges relating to the August 6, 2009 incident were ultimately reversed by an arbitrator, and the chronic absenteeism charge withdrawn without penalty, the institution of disciplinary proceedings may in some cases be sufficient to constitute adverse action which would have a deterrent effect on persons wishing to challenge discrimination in the workplace. See Weber v. City of New York,