OPINION
Plaintiff Nzingha M. Kellman (“Plaintiff’ or “Kellman”), an African-American female, together with eight African-American plaintiffs and one Hispanic plaintiff, all of whom are current or former employees of the Metropolitan Transportation Authority (“MTA”) Police Department (“MTA PD”), commenced this action against the MTA and four MTA executive officers (collectively, “Defendants”), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”), and 42 U.S.C. §§ 1981 and 1983. Plaintiff maintains that MTA discriminated against her on the basis of her race and sex by denying her promotions and training, subjecting her to a hostile work environment, and
For the reasons set forth herein, Defendants’ Motion for Summary Judgment is granted in part, denied in part, and the Court reserves decision in part.
/. FACTUAL BACKGROUND
A. The Parties
Defendant MTA is a New York State public benefit corporation that provides public transportation services to the Greater New York City area. Defendant Elliot Sander served as the Executive Director and Chief Executive Officer of MTA from January 1, 2007 to May 7, 2009. Defendant William Morange was MTA Director of Security from July 2003 to December 2010. Defendant Kevin McConville was the Chief of MTA PD from October 2005 to January 2008. Defendant Terrance Culhane was an Assistant Deputy Chief of MTA PD from 2004 to July 2010.
Plaintiff Nzingha M. Kellman joined MTA PD as a police officer on July 6, 1999. (Pl.’s 56.1 Stmt. ¶ A.)
B. Plaintiffs Employment with MTA PD
Plaintiff was first assigned to the Communications Unit and in 2001 transferred to District 3. (Pl.’s 56.1 Stmt. ¶¶ C-D.) She alleges that she experienced race- and sex-based harassment during both assignments. (Id.) For instance, MTA PD members barred Kellman from going to the bathroom until male officers finished using the facilities, called her a “fucking bitch” and a “skell,” physically threatened her, wrote graffiti on her locker, and ordered her to deviate from her MTA-approved, pregnancy-related desk duty. (Id. ¶¶ EK; Defs.’ Resp. Pl.’s 56.1 Stmt. ¶ K.) MTA did not investigate Plaintiffs complaints of harassment. (Pl.’s 56.1 Stmt. ¶¶ G, EEE.)
In October 2003, Plaintiff was promoted to Sergeant, a nondiscretionary promotion resulting from her performance on the Sergeant’s examination. (Id. ¶ N.) She was assigned to District 5 — Grand Central in October 2003, where she was supervised by Deputy Inspector Robert Terrett and Inspector Thomas Dunn. (Id.) At Grand Central, Kellman was a patrol sergeant, and as such, was responsible for supervising patrol officers who reported from Grand Central. (Id.; Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 7R.)
C.Plaintiffs Requests for Training
MTA’s Training Bureau disseminates information about discretionary training courses to district commanding officers. (Pl.’s 56.1 Stmt. ¶ O.) Commanding officers may recommend particular members of their command for training courses, regardless of whether those members request the training. (Id.; Defs.’ Resp. Pl.’s 56.1 Stmt. ¶ O; Terrett Dep. 152:22-25.) Alternatively, MTA PD members may request that their supervisors assign them to particular training courses. (Defs.’ Resp. Pl.’s 56.1 Stmt. ¶?.) However, no operational orders announce training opportunities to MTA PD members, and Kellman typically learned about discretionary train
Plaintiff repeatedly requested that Defendants consider her for all future training courses. (PL’s 56.1 Stmt. ¶¶ S-T.) In March 2004, Kellman requested assignment to Executive Protection Training after viewing a Personnel Order assigning others to the Training.
According to the record, four of the sixteen employees who received Executive Protection Training after the 1998 formation of MTA PD
In July 2005, after viewing a Personnel Order assigning members to Land Transportation Antiterrorism Training, Plaintiff asked to attend the Training. (Pl.’s 56.1 Stmt. ¶ S; Jeremías Decl. Ex. U.) Her request was denied. (PL’s 56.1 Stmt. ¶ S.) Defendants allege that they denied the Training because it was not relevant to Kellman’s duties or within MTA’s needs. (Defs.’ 56.1 Stmt. ¶ 40.) Terrett, however, states thаt he denied Plaintiffs request because “it would have created a scheduling problem, leaving [Grand Central] with one less Patrol Sergeant than was normally scheduled.” (Terrett Reply Decl. ¶ 5.) Terrett did not supervise any of the seven members selected for the training. (Id.) Of those seven, one was an African American man and one was an African American woman. (Defs.’ 56.1 Stmt. ¶ 37.)
Also in 2005, Plaintiff requested assignment to Incident Command Systems (“ICS”) Training, and her request was denied. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 38R.) The Parties dispute whether Plaintiff made her request before or after the publication of a Personnel Order assigning three MTA PD members to an October 2005 ICS Training. (Kellman Decl. ¶ 18; Terrett Decl. ¶ 6.) Defendants initially alleged that Plaintiff was denied ICS Training because the Training was not required for performance of her duties and was not within MTA’s needs. (Defs.’ 56.1 Stmt. ¶ 40.) In his Reply Declaration, however, Terrett alleges that he denied Plaintiff the Training because Plaintiff requested it too late for him to arrange for her to attend. (Terrett Decl. ¶ 6; see Jeremías Decl. Ex. W.)
Of the three members assigned to the October 2005 ICS Training, two were Caucasian patrol sergeants and one was an African American lieutenant. (Defs.’ 56.1 Stmt. ¶ 38; PL’s Resp. Defs.’ 56.1 Stmt. ¶ 38R.) One of the assigned sergeants, Rosalie Grascia, also worked in District 5— Grand Central and was supervised by Ter-rett. (Kellman Deck ¶ 18.) The assigned lieutenant, co-plaintiff Bryan Henry, attended the October 2005 Training in order to meet MTA’s requirement that all lieutenants take ICS 300 Training. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 38R; Defs.’ Reply PL’s Resp. Defs.’ 56.1 Stmt. ¶38.) All seven sergeants who attended an ICS Training course between March 2005 and October 2006 were Caucasian, and only one was a woman. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 38R; Jeremías Decl. Ex. W.)
Plaintiff requested assignment to Plainclothes Tactical Training in July 2006. (PL’s 56.1 Stmt. ¶ T.) Dunn denied Plaintiffs request, writing, “[A]t this time, plain clothes training is being offered to police officers.” (Jeremías Decl. Ex. V, at
D. Plaintiffs June 2004 Application for Promotion to Detective Sergeant
In June 2004, Defendants issued a Personnel Order requesting abstracts for promotion to Detective Sergeant with assignment to ICTF. (Jeremías Decl. Ex. AA.) Although the Personnel Order explicitly sought individuals with Executive Protection Training, MTA interviewed two individuals who did not have that Training, Reliman and Daniel Eivazi. (Pl.’s 56.1 Stmt. ¶ RR; Jeremías Decl. Ex. AA.) In July 2004, MTA promoted three Caucasian men, Eivazi, Thomas Farney, and Lawrence Cudia, to the position. (Jeremías Decl. Ex. Y.)
Defendants allege that Farney, Cudia, and Eivazi were chosen over Plaintiff because they had been sergeants for longer and because they had more investigative or supervisory experience. (Defs.’ 56.1 Stmt. ¶ 42.) As compared to Eellman’s eight months as a sergeant, Farney, Cudia, and Eivazi had been sergeants for fourteen months, at least three years, and fourteen months, respectively. (Jeremías Decl. Ex. Z, at D00007397; Jeremías Decl. Ex. DD, at D00024552, D00024557, D00024566, D00024571, D00024575, D00024580, D00024593, D00024598; Reliman Decl. ¶ 11.) Farney and Cudia gained investigative experience during their assignment to ICTF, with Farney gaining further experience from his work with the Applicant Investigations Unit. (Defs.’ 56.1 Stmt. ¶ 42; Pl.’s Resp. Defs.’ 56.1 Stmt. T42R(bXc); Defs.’ Reply Pl.’s 56.1 Stmt. ¶ 42.) Farney and Cudia both mentioned their investigative experience at their interviews, and most interviewers remarked on that experience. Jeremías Decl. Ex. CC, at D00024405-06, D00024409-10, D00024416, D00024419, D00024428, D00024434, D00024437, D00024446; Jeremías Decl. Ex. DD, at D00024458, D00024576, D00024585.) In contrast, in response to the question, “What value can you bring to this unit?”, neither Eivazi nor Reliman mentioned investigative experience. (Jeremías Decl. Ex. X, at D00007422, D00007431, D00007440, D00007449; Jere-mías Decl. Ex. BB, at D00024508, D00024517, D00024526, D00024535.) Interviewer Ernest Pucillo wrote that Plaintiff “[h]as limited investigative experience.” (Jeremías Decl. Ex. X, at D00007455.) Though Eivazi had little investigative background, he had six months more supervisory experience than Reliman. (Id. at D00007421; Jeremías Decl. Ex. Z, at D00007397; Jeremías Decl. Ex. BB, at D00024516.) Pucillo wrote that Eivazi “[h]as good supervisory background” (Jeremías Decl. Ex. BB, at D00024532), and interviewer James Flanagan wrote that Reliman “has little time as a spvr” (Jeremías Decl. Ex. X, at D00007428).
Plaintiff argues that the Personnel Order did not list supervisory and investigatory experience as qualifications, and instead listed, inter alia, “[knowledge in terrorist related computer investigations,” “[ajbility to act as liaison with federal, state, and local law enforcement agencies,” “[kjnowledge of databases for statistical analysis of intelligence,” and “[d]evelop
E. Plaintiffs July 2004 Application for Promotion to Detective Sergeant
In July 2004, Defendants requested abstracts for promotion to Detective Sergeant and assignment to the Detective Division. (Jeremías Decl. Ex. FF.) Stephen Conner interviewed Reliman and Sergeants Dirk Jordan, Alexander Lindsey, Lee Dittrich, and Andre Csizmadia for the position. (Pl.’s 56.1 Stmt. 1fflPP-QQ) Although two Detective Sergeant positions were available, only Jordan, an African American man, was promoted. {Id. ¶ PP.) Conner later stated that he did not fill the second slot because of a “lack of investigative experience for those candidates that were not selected.” (Jeremías Decl. Ex. GGG, at D00013001.) Conner’s interview notes on Reliman state, “Needs more ‘supervisory investigative’ knowledge that she doesn’t have now. In time may deserve consideration but is not ready yet. Not recommended.” (Jeremías Decl. Ex. EE, at D00013002.)
Plaintiff, who does not argue that she was more qualified for the position than Jordan, argues that she was more qualified than the other interviewees, all Caucasian men, and points out that Conner’s interview notes include positive comments about her. (Defs.’ 56.1 Stmt. ¶ 45; PL’s 56.1 Stmt. ¶ OO-QQ.) Of the fourteen detectives whom Conner promoted over his career, eleven were Caucasian men and one was a woman. (PL’s 56.1 Stmt. ¶ RR.)
F. Plaintiffs October 2005 Application for Promotion to Detective Sergeant
In October 2005, Defendants requested abstracts for promotion to Detective Sergeant. (Jeremías Decl. Ex. PP.) The Personnel Order stated that Defendants sought individuals with, inter alia, detective experience and five years law enforcement experience, and listed the Criminal Investigators Course (“CIC Training”) as a requirement. {Id.) Because Reliman had never requested or received CIC Training, her supervisor, Terrett, disapproved her abstract, and she was not interviewed for the position. (PL’s 56.1 Stmt. ¶XX; PL’s Resp. Defs.’ 56.1 Stmt. ¶ 46R n. 37.) Defendants interviewed Sergeant Joseph Johnston and Detective Andrew Roderick, both Caucasian men, for the position, and promoted Roderick. (PL’s 56.1 Stmt. IfilXX, AAA.)
Plaintiff alleges that prior to submitting her abstract, several officers told her that the October 2005 Detective Sergeant position and the Personnel Order qualifications were designed specifically for Roderick, who had only five months supervisory experience. (PL’s 56.1 Stmt. ¶ ZZ; Jeremías Decl. Ex. H, at D00012962.) Before October 2005, some Caucasian members promoted to Detective Sergeant did not have detective experience or CIC Training, and Plaintiff alleges that Johnston had never received CIC Training. (PL’s 56.1 Stmt.
G. Plaintiffs Complaint to MTA’s Office of Civil Rights
On or around November 10, 2005, Plaintiff scheduled an аppointment with MTA’s OCR. (Pl.’s 56.1 Stmt. ¶ GGG; Jeremías Decl. Ex. H, at D00001213-14.) After an OCR employee informed Terrett of the scheduled meeting, Terrett allegedly called Kellman and threatened to transfer her from Grand Central to the Communications Unit. (Pl.’s 56.1 Stmt. ¶ GGG; Jere-mías Decl. Ex. H, at D00012964, D00001213-14.) Had Plaintiff been transferred, she would have lost her supervisory responsibilities and would not have been able to make arrests or conduct investigations. (Pl.’s 56.1 Stmt. ¶ GGG.) On November 14, 2005, Plaintiff filed a Complaint of discrimination with OCR. (Id.; Jeremías Decl. Ex. H, at D00012960-61, D00012966-68.) On November 23, 2005, Plaintiff submitted additional allegations of discrimination to OCR. (Jeremías Decl. Ex. H, at D00012962-65.)
A citywide transit strike occurred from December 20 to December 22, 2005, during which time MTA PD advised its members that no one would be granted unscheduled days off. (Defs.’ 56.1 Stmt. ¶ 52; Timothy Williams & Sewell Chan, “State Mediators’ Plan Clears Way to Resolve 60-Hour Ordeal,” N.Y. Times, Dec. 22, 2005, http:// www.nytimes.com/2005/12/22/nyregion/22 cnd-strike.html.)
After discovering that Henry had authorized the days off, Dunn instructed him to inform Kellman that she could not take the vacation time. (Dunn Dep. 242:21-22.) According to Henry, Dunn’s only stated rationale for rescinding Plaintiffs vacation time was that approving vacation time “was Lieutenant [Diane] Nash’s job.” (Henry Dep. 339:6-8, 340:2-7.) Dunn agrees that Nash, and not Henry, was “in charge of granting time off,” but affirms that the primary reason Henry should not have granted Plaintiffs request was because the requested days off were during the strike. (Dunn Dep. 240:7-9, 241:24-242:4.) Kellman did not respond to Henry’s calls to her cell phone and home phone, allegedly because she was in the middle of her commute home and her cell phone had died. (Kellman Dep. 210:16-211:1.)
After Henry told Dunn that he could not reach Plaintiff, Dunn either ordered or told Henry that “one of the options [wa]s” to ask the Delaware State Police to go to Plaintiffs house and “locate” her. (Defs.’
On May 23, 2006, Dunn issued Plaintiff a Letter of Instruction (“LOI”) for failing to ensure that her supervisees prepared District Prisoner Log entries properly during a patrol investigation on December 9, 2005. (Fuchs Decl. Ex. 7.) The LOI was precipitated by an investigation into a civilian’s allegations of MTA PD misconduct. (Id.) Plaintiff alleges that it was not her responsibility to make entries in the prisoner log. (Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 18R.)
H. Plaintiffs Complaints to the State Division of Human Rights
On July 11, 2006, Plaintiff filed a Complaint alleging race and sex discrimination with the SDHR. (Jeremías Deck Ex. I.)
On August 1, 2006, Terrett asked Plaintiff to explain why she had not completed a May 2006 Activity Report, and forwarded her a June 7, 2006 email, allegedly sent by Sergeant Omeeta Lakeram to Plaintiff, advising her to complete the May Report. (Pl-’s Resp. Defs.’ 56.1 Stmt. ¶ 21R.) Plaintiff affirms that she does not recall seeing Lakeram’s email before August 1. (Kell-man Dep. 118:3-7.) On September 15, 2006, Kellman submitted a memorandum to Terrett stating, “I was never instructed by Sgt. Lakeram to prepare any monthly activity reports....” (Fuchs Deck Ex. 11.) On October 14, 2006, Plaintiff received and signed a Notice of Intent to Discipline for “generating a false and misleading report to a Command Staff Member.” (Fuchs Deck Ex. 8.) Plaintiff alleges that she signed the Notice because Lieutenant Christopher Salotto told her that if she did not, she would be fired. (Pb’s Resp. Defs.’ 56.1 Stmt. ¶ 23R.) After going through the Collective Bargaining Agreement (“CBA”)’s grievance and arbitration proсedure, on October 28, 2009 Plaintiff signed a settlement agreement in which she “admitted] to misinforming ... Terrett concerning monthly activity reports.” (Fuchs Deck Ex. 10.)
At some point on or before October 9, 2006, Plaintiff requested training from Terrett and Dunn, who advised her to request a meeting regarding training with Assistant Deputy Chief Sean McLaughlin. (Pl.’s 56.1 Stmt. ¶ NNN.) Accordingly, on October 9, 2006, Plaintiff requested that Terrett set up a meeting between Plaintiff and McLaughlin regarding the lack of training opportunities afforded to her. (Fuchs Deck Ex. 15.) On October 12, 2006, Dunn sent Kellman an email stating that the requested meeting would occur on October 16, 2006 at 7:30 A.M. (Defs.’ 56.1 Stmt. ¶ 27.) However, because Plaintiff did not see the email, she did not appear at the meeting. (Fuchs Deck Ex. 16.) On October 30, 2006, Defendants issued an LOI instructing Plaintiff to review timely all email sent to her by supervisors. (Fuchs Deck Ex. 9.) Plaintiff notes that the meeting was scheduled for a time when Dunn and MTA PD knew that she would be unavailable due to her childcare obli
On December 18, 2006, Plaintiff filed a second SDHR Complaint alleging further discrimination and retaliation. (Pl.’s 56. Stmt. ¶ 000.) Plaintiff alleges that after she filed her SDHR Complaints her requests for specific training were denied; in particular, she cites the May 2011 denial of her request for Executive Protection Training. (Id. ¶ PPP.)
II. DISCUSSION
A. Legal Standard for Summary Judgment
A court should grant summary judgment when there is “no genuine dispute as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Allianz Ins. Co. v. Lerner,
In assessing when summary judgment should be granted, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. (citation omitted). The non-movant may not rely upon speculation or conjecture to overcome a motion for summary judgment. Burgess v. Fairport Cent. Sch. Dist.,
B. Disparate Treatment Based on Race and Sex
1. Title VII and NYSHRL Claims
Courts in this Circuit analyze Title VII and NYSHRL claims of employment discrimination according to the three-stage, burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
Title VII’s statute of limitations bars claims based on events occurring more than 300 days prior to filing a charge of discrimination with a state or local employment agency. 42 U.S.C. § 2000e-5(e)(l). Plaintiff filed an administrative complaint with the SDHR on July 11, 2006. (Fuchs Decl. Ex. 2.) Accordingly, only those incidents that occurred on or after September 14, 2005 are actionable under Title VII. Patterson v. Cnty. of Oneida,
Here, Kellman alleges that MTA violated Title VII and the NYSHRL by denying her requests for training and applications for Detective Sergeant on the bases of her race and sex.
Plaintiff has failed to raise evidence sufficient for a reasonable fact-finder to find that Defendants’ rationale is pretextual. The record reflects that the four individuals assigned to Executive Protection Training in 2004 were all ICTF members at the time they received the training.
Between 2008 and 2011, multiple detectives received Executive Protection Training even though they were not ICTF members. (Barreto Decl. ¶ 5; Jeremias Decl. Ex. T; Jeremias Decl. Ex. KKK, at P06335.) These training assignments, however, are consistent with Barreto’s deposition testimony, in which he explains that because some non-ICTF detectives performed executive protection duties, MTA PD decided in 2008 to begin assigning them to Executive Protection Training. (Barreto Dep. 124:9-19, 130:21-132:19; see also Barreto Reply Decl. ¶ 5.) Plaintiff does not allege that she ever carried out the type of executive protection duties performed by detectives. (See PL’s 56.1 Stmt.; Barreto Reply Decl. ¶¶ 2, 5.) Moreover, Barreto affirms that patrol sergeants and uniformed police officers do not receive Executive Protection Training (Bar-reto Reply Decl. ¶ 7), an affirmation supported by the remainder of the record. (See Defs.’ 56.1 Stmt. ¶36; PL’s Resp. Defs.’ 56.1 Stmt. ¶ 36R; Defs.’ Reply PL’s Resp. Defs.’ 56.1 Stmt. ¶36; PL’s 56.1 Stmt. ¶ LL; Barreto Decl. ¶¶ 6-7; Barreto Dep. 46:2-6, 91:7-92:10; Fuchs Reply Decl. Ex. 21; Jeremias Decl. Ex. T; Jere-mias Dеcl. Ex. KKK, at P06335; Urquhart Dep. 176:4-8.)
The submitted evidence does not permit a reasonable jury to find by a preponderance of the evidence that MTA’s decision was motivated both by legitimate factors and by race or sex. Four of the sixteen recipients of Executive Protection Training after 1997 were African American and two were women. (Fuchs Decl. Ex. 21; Jere-mias Decl. Ex. T; Jeremias Decl. Ex. KKK, at P06335; Barreto Dep. 92:2-16; Urquhart Dep. 176:4-8.) Plaintiff emphasizes that a majority of the Executive Protection Training attendees were Caucasian. (PL’s Am. Mem. Law Opp’n Defs.’ Mot. Summ. J. (“PL’s Opp’n”) 13.) However, these data are not sufficient on their own to convince a reasonable jury that the denials of Executive Protection Training in 2004 were based, even in part, on discrimination.
Defendants do not address specifically Plaintiffs 2011 request for Executive Protection Training, instead claiming generally that Plaintiffs requests for the Training were denied because the course did not relate to her duties as a patrol sergeant and MTA PD had no need to assign her to it. (Defs.’ Rev. Mem. Law Supp. Summ. J. (“Defs.’ Mem.”) 8; Defs.’ Rev. Reply Mem. Law Supp. Mot. Summ. J. (“Defs.’ Reply”) 5.) However, Berlingieri’s June 6, 2011 email does not indicate that these factors were at play in the denial of her 2011 request. (Jeremias Decl. Ex. KKK, at P06324.) The email shows that Berlingieri failed to respond to Plaintiffs request until after the Training had finished and gives no substantive reason for this failure. (Id.) Berlingieri told Plaintiff that if she submitted a new request for Executive Protection Training, he would “forward it up the chain of command for their consideration.” (Id.) Had Berlingieri forwarded Plaintiffs 2011 request up the Chain of Command, a superior officer may well have found that the Training was unrelated to Plaintiffs duties and denied her request. The record before the Court, however, raises a material issue of fact as to
Here, the possibility that Defendants’ rationale is pretextual, in combination with the remainder of the record, could not convince a reasonable jury that the denial of Plaintiffs 2011 request was based, evеn in part, on discrimination. See Zimmermann v. Assocs. First Capital Corp.,
Next, Plaintiff alleges that Defendants denied her July 2005 request to attend Land Transportation Antiterrorism Training on the basis of her race and sex. Assuming that Plaintiff has set forth a prima facie case of discrimination, Defendants have stated legitimate, nondiscriminatory reasons for the denial: the Training was not required for Plaintiffs duties and MTA had no need to assign her to it. (Defs.’ 56.1 Stmt. ¶ 40.) However, Plaintiff has raised a material issue of fact as to whether Defendants’ rationales are pretex-tual. In his Reply Declaration, Terrett states that he denied Plaintiffs request not for the reasons Defendants state but because Plaintiffs attendance at the Training “would have created a scheduling problem.” (Terrett Reply Decl. ¶ 5.)
However, even taking into account this evidence of pretext, no reasonable juror could find that the denial of Plaintiffs July 2005 request was based on her race or sex. The record shows that MTA members who were assigned to a training had either requested that training from their supervisors or been recommended for assignment to that training by one of their commanding officers. (Pl.’s 56.1 Stmt. ¶ O; Defs.’ Resp. PL’s 56.1 Stmt. ¶¶ O-P; Terrett Dep. 152:22-25, 158:9-17.) Ter-rett, Plaintiffs supervisor and commanding officer, affirms that he did not supervise any of the seven members assigned to Land Transportation Antiterrorism Training in July 2005, and the record does not indicate that Plaintiffs other supervisor and commanding officer, Dunn, supervised them or was their commanding officer. (PL’s 56.1 Stmt. ¶ N; Terrett Reply Decl. ¶ 5.)
Next, Plaintiff alleges that Defendants discriminated on the bases of Plaintiffs race and sex when they denied her request for Incident Command System (“ICS”) Training. The “denial of professional training opportunities may constitute an adverse employment action, but only where an employee can show ‘material harm’ from the denial, ‘such as a failure to promote or a loss of career advancement opportunities.’ ” Trachtenberg v. Dep’t of Educ. of N.Y.C.,
Plaintiff also alleges that Defendants denied her July 2006 request for Plainclothes Tactical Training on the bases of her race and sex. Assuming that Plaintiff has set forth a prima facie case of discrimination, Defendants state a legitimate, nondiscriminatory reason for the denial: at the time of her request, Plainclоthes Training was offered only to police officers. (Defs.’ 56.1 Stmt. ¶ 39.) Plaintiff has failed to raise evidence sufficient for a reasonable fact-finder to find this rationale pretextual. Dunn informed Plaintiff of this rationale in the email in which he denied her request, and indeed, the only individuals assigned to Plainclothes Training in 2005 and 2006 were police officers. (Id.; Jeremías Decl. Ex. V, at P04276.) Although four individuals above the rank of police officer were assigned to Plainclothes Training in 2009, this does not call into question Defendants’ rationale. (Jeremías Decl. Ex. V, at D00042175, D00040245.) Dunn’s email stated, “[A]t this time, plain clothes training is being offered to police officers.” (Id. at P04276 (emphasis added).)
Moreover, the submitted evidence does not permit a reasonable jury to find that MTA’s decision was motivated both by legitimate factors and by race or sex. The only sergeant who attended Plainclothes Training, assigned in April 2009, was stationed in a different district than Plaintiff and appears to have had different supervisors and commanding officers at the time he was assigned to the Training. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 7R; Jeremías Decl. Ex. V, at D00040245.) Data on the race and sex of the individuals assigned to
Next, Plaintiff alleges that Defendants denied her June 2004 application for promotion to Detective Sergeant on the bases of her race and sex. Assuming arguendo that Plaintiff has established a prima facie case of discrimination, Defendants have set forth legitimate, nondiscriminatory rationales for their promotion decision: Farney, Cudia, and Eivazi had been sergeants for longer than Plaintiff and had more investigative or supervisory experience than Plaintiff. (Defs.’ 56.1 Stmt. ¶ 42.) Plaintiff has failed to raise a material issue of fact as to whether these rationales are pretextual. The evidence submitted shows that Plaintiff indeed had less investigatory experience than Farney and Cudia and less supervisory experience than Eivazi, and had been a sergeant for a shorter period of time than all three. (Id.; Pl.’s Resp. Defs.’ 56.1 Stmt. ¶42R(b)-(c); Defs.’ Reply Pl.’s 56.1 Stmt. ¶ 42; Jeremí-as Decl. Ex. X, at D00007421-22, D00007428, D00007431, D00007437, D00007440, D00007446, D00007449, D00007455; Jeremíаs Decl. Ex. Z, at D00007397; Jeremías Decl. Ex. BB, at D00024508, D00024514, D00024516-17, D00024523, D00024526, D00024532, D00024535, D00024541; Jeremías Decl. Ex. CC, at D00024405-06, D00024409-10, D00024416, D00024419, D00024428, D00024434, D00024437, D00024446; Jere-mías Decl. Ex. DD, at D00024458, D00024552, D00024557, D00024566, D00024571, D00024575-76, D00024580, D00024585, D00024593, D00024598; Kell-man Decl. ¶ 11.) The interviewers’ write-ups highlighted Farney and Cudia’s investigative experience, Eivazi’s supervisory experience, and Plaintiffs shortcomings in both areas. (Jeremías Decl. Ex. X, at D00007428, D00007455; Jeremías Decl. Ex. BB, at D00024532; Jeremías Decl. Ex. CC, at D00024405-06, D00024409-10, D00024416, D00024419, D00024428, D00024434, D00024437, D00024446; Jere-mías Decl. Ex. DD, at D00024458, D00024576, D00024585.)
Plaintiff argues that investigatory experience and supervisory experience were not listed as “preferred qualifications” on the June 17, 2004 Personnel Order, and claims that she was more qualified in the areas listed in the Order than the three selected sergeants. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 42R.) In fact, the Personnel Order did highlight investigatory and supervisory skills as desired qualifications. (See Jeremías Decl. Ex. AA (listing “[a]bility to supervise the assessment of infrastructure of MTA facilities” and “[k]nowledge in terrorist related computer investigations” as relevant qualifications).) Although Plaintiff may have had some of the other listed qualifications, a plaintiff who “seeks to prevent summary judgment on the strength of a discrepancy in qualifications ignored by an employer” must have “credentials ... so superior to the credentials of the person selected for the job that ‘no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question.’ ” Byrnie v. Town of Cromwell Bd. of Educ.,
Nor does the evidence permit a reasonable juror to find that MTA’s decision was motivated both by legitimate factors and by race or sex. Although Plaintiffs application was strong in certain areas, these strengths do not satisfy her burden, even when viewed in combination with the statistical evidence of racial disparities in advancement at MTA PD and the fact that
Next, Plaintiff claims that Defendants’ denial of her July 2004 abstract for promotion to Detective Sergeant was discriminatory. Assuming that Plaintiff has set forth a prima facie case of discrimination, Defendants have stated a legitimate, nondiscriminatory reason for the dеnial: Kellman did not have sufficient investigatory and supervisory experience. (Defs.’ 56.1 Stmt. ¶ 45.) Plaintiff has failed to raise an issue of material fact as to whether the investigatory experience rationale is pretextual. Conner’s interview notes state that Plaintiff and the three other rejected candidates lacked sufficient investigative experience, and Plaintiff had less investigative experience than the promoted candidate. (Jeremías Decl. Ex. EE, at D00013002, D00013018, D00013021; Jere-mías Decl. Ex. GG, at D00015943, D00015946; Jeremías Decl. Ex. HH, at D00015963; Jeremías Decl. Ex. II, at D00016044; Jeremías Decl. Ex. JJ, at D00015977.) However, some evidence suggests that Defendants’ emphasis on Plaintiffs lack of supervisory experience is pretextual. The interview notes do not mention the extent of the other candidates’ supervisory experience, and the person promoted to Detective Sergeant in November 2005 had less supervisory experience than Kellman. (Fuchs Decl. Ex. 44, at D00016619, D00016621; Fuchs Decl. Ex. 45; Jeremías Decl. Exs. GG-II.) Moreover, although Conner’s interview notes state that Plaintiff needs more “ ‘supervisory investigative’ knowledge” (Jeremías Decl. Ex. EE, at D00013002), in his Reply Declaration, he states that Plaintiffs application was denied because “she, like all the candidates other than Jordan, lacked the necessary experience as an investigator” (Conner Reply Decl. ¶ 8).
However, even with the evidence that Defendants’ supervisory experience rationale may be false, a reasonable jury could not find that the promotion denial was based, even in part, on Plaintiffs race or sex. Plaintiff argues that she was more qualified for the position than the three other rejected candidates. However, Plaintiffs qualifications were not so far superior to the other rejected candidates to indicate that the denial of her application was discriminatory. See Byvnie,
Last, Plaintiff argues that Defendants denied her October 2005 application for promotion to Detective Sergeant on the bases of her race and sex. Assuming that Plaintiff has put forth a prima facie case of discrimination, Defendants have stated legitimate, nondiscriminatory reasons for the denial of Plaintiffs application: Plaintiff had not received CIC Training and had never been a detective. (Defs.’ 56.1 Stmt. ¶ 46.) Kellman has failed to raise an issue of material fact as to whether these rationales are pretextual. The Personnel Order listed CIC Training as a requirement and detective experience as a desired qualification. (Jeremías Decl. Ex. PP.) The two individuals interviewed for the position had received CIC Training
Plaintiff argues that, even assuming she did not have CIC Training or detective experience, the imposition of these qualifications indicates pretext. (Pl.’s Opp’n 9-11.) Although these qualifications were not in the two prior Personnel Orders announcing Detective Sergeant openings, the June 2004 Personnel Order was for assignment to a different unit (ICTF) than the July 2004 and October 2005 Personnel Orders (the Detective Division). (Fuchs Decl. Ex. 40; Jeremias Decl. Exs, AA, FF, PP.) As such, the person who set the promotion criteria and reviewed candidates in June 2004 (Pucillo) was different than the person who set the promotion criteria and reviewed candidates in July 2004 and October 2005 (Conner). (Fuchs Decl. Ex. 40; Pucillo Dep. 113:10 — 114:15.) The absence of these qualifications in a Personnel Order for assignment to a different unit with different personnel needs is not probative.
The difference between the July 2004 and October 2005 Pérsonnel Orders is ex
No reasonable jury could find that the October 2005 denial was based, even in part, on Plaintiffs race or sex. Plaintiff argues that she was more qualified for the position than Roderick and Johnston. However, Plaintiffs qualifications were not so far superior to Roderick and Johnston’s to suggest that the denial of her application was race- or sex-based. See Bymie,
Accordingly, Defendants’ Motion for Summary Judgment regarding Plaintiffs Title VII and NYSHRL disparate treatment claims is GRANTED.
2. NYCHRL Claims
The NYCHRL “‘explicitly requires an independent liberal construction analysis in all circumstances,’ an analysis that ‘must be targeted to understanding and fulfilling what the statute characterizes as the City HRL’s uniquely broad and remedial purposes, which go beyond those of counterpart state or federal civil rights laws.’” Bennett v. Health Mgmt. Sys., Inc.,
For an NYCHRL claim to survive a summary judgment motion,
the plaintiff need only show that her employer treated her less well, at least in part for a discriminatory reason. The employer may present evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by discrimination, but it is entitled to summary judgment on this basis only if the record establishes as a matter of law that “discrimination play[ed] no role” in its actions.
Id. at 110 n. 8 (citation omitted). “[S]um-mary judgment dismissing а claim under the NYCHRL should be granted only if
Plaintiff has not raised an issue of material fact as to whether the alleged denial of Executive Protection Training, Land Transportation Antiterrorism Training, Plainclothes Training, and Plaintiffs applications for promotion were “caused at least in part by discriminatory ... motives.”
However, Plaintiffs race discrimination claim regarding ICS Training, which must be dismissed pursuant to Title VII and the NYSHRL, survives under the NYCHRL. There is no dispute that Plaintiff satisfies the first two elements of her prima facie discrimination case: she is a member of two protected classes and was qualified for her job. The Parties do, however, dispute the third and fourth elements.
The denial of ICS Training meets the NYCHRL’s definition of “adverse employment action” because it is “more than trivial, insubstantial, or petty.” Jeune v. City of New York, No. 11 Civ. 7424,
Defendants state legitimate, nondiscriminatory reasons for the denial of ICS Training: Kellman’s duties as a patrol sergeant did not require her to attend the Training, nor was attendance within the needs of MTA. (Defs.’ 56.1 Stmt. ¶40.) However, Terrett’s Reply Declaration and Defendants’ Reply brief contradict these rationales. Terrett notes that “ICS Training would have been an appropriate course for Kellman to take in connection with her duties as a Patrol Sergeant.” (Terrett Reply Decl. ¶ 6.)
Beyond this indication of pretext, the record contains additional evidence that the denial of ICS Training was, at least in part, motivated by Plaintiffs race. Every sergeant assigned to the ICS Trainings occurring between March 2005 and October 2006 was Caucasian. (Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 38R.) One of these Caucasian sergeants was Grascia, who, like Plaintiff, worked in District 5-Grand Central and was supervised by Terrett and Dunn. (Kellman Decl. ¶ 18; Terrett Dep. 152:10-11, 158:15-17, 159:17-160:1.) As discussed above, individuals assigned to particular discretionary trainings had either requested the training from them supervisors or had been recommended for the training by one of their commanding officers. (Pl.’s 56.1 Stmt. ¶ O; Defs.’ Resp. Pl.’s 56.1 Stmt. ¶¶ O-P; Terrett Dep. 152:22-25, 158:9-17.) Thus, either Terrett or Dunn was involved in the assignment of Grascia to ICS Training. None of Defendants’ three rationales explains sufficiently why Kellman’s supervisors would have assigned Grascia to ICS Training but denied Kellman’s request for the same Training. The record does not indicate that providing ICS Training to Grascia would have been more within MTA PD’s “needs” than providing it to Kellman, also a patrol sergeant stationed in Grand Central, nor would the Training have been more relevant to Grascia’s duties than to Kellman’s. As for Terrett’s allegation that Plaintiffs request was tardy, there is an issue of material fact as to whether Plaintiff requested ICS Training before or after the publication of the October 2005 Personnel Order assigning Grascia to the Training. (Kellman Decl. ¶ 18; Terrett Decl. ¶ 6.) Even assuming that Plaintiff requested the Training after the October 2005 Order was published, nothing in the record indicates whether Grascia requested the Training. Terrett assigned Grascia
However, no reasonable jury could find that the denial of ICS Training was based, even in part, on Plaintiffs sex. The record does not indicate that the four male sergeants assigned to ICS Training when Plaintiff was available to attend the Training had Terrett or Dunn as supervisors or commanding officers. (See Fuchs Decl. Ex. 21; Jeremias Decl. Ex. W, at D00013039, D00008368.) Accordingly, there is no indication that Terrett or Dunn had anything to do with the four men’s assignment to ICS Training. The only person who appears to have been recommended or approved for ICS Training by Plaintiffs supervisors is Grascia, a woman. Under these circumstances, the data about the sex of the sergeants assigned to ICS Training, in combination with the evidence of pretext and the rest of the record, could not convince a reasonable jury that Reli-man was denied ICS Training even partly because of her sex.
Thus, Defendants’ Motion for Summary Judgment on Kellman’s NYCHRL claims is GRANTED, except with regard to her race discrimination claim concerning the denial of ICS Training.
C. Hostile Work Environment Claims
1. Title VII and NYSHRL Claims
“In order to survive summary judgment on a claim of hostile work environment harassment, a plaintiff must produce evidence that ‘the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment.’ ” Cruz v. Coach Stores, Inc.,
Plaintiff bases her hostile work environment claims on various allegations. Reli-man alleges that between 1999 and 2002, MTA members physically threatened her, wrote a racially derogatory term on her locker, forced her to use the men’s bathroom, and instructed her to do physical activity from which she was exempt due to her pregnancy-related light duty status. (Pl.’s Opp’n 20 n. 43; Pl.’s 56.1 Stmt. ¶¶ C, E-G, J-R.) She also points to her supervi
With hostile work environment claims, “the crucial inquiry focuses on the nature of the workplace environment as a whole, [so] a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those instances to support her claim.” Cruz,
Accordingly, the Court reserves decision on Defendants’ Motion for Summary Judgment on Kellman’s federal and state hostile work environment clаims until after considering fully the Motions for Summary Judgment against Plaintiffs Marilyn Y. Armstrong and Bryan Henry.
2. NYCHRL Claim
NYCHRL claims must be reviewed “separately and independently from any federal and state law claims.” Mihalik,
D. Retaliation Claims
1. Title VII and NYSHRL Claims
Plaintiff alleges that she suffered unlawful retaliation for filing complaints with MTA’s OCR and the SDHR. She claims that MTA retaliated against her for complaining to the OCR by threatening to transfer her out of her patrol assignment, sending the local police to her house, threatening to rescind previously approved time off, and subjecting her to increased discipline. Reliman also alleges that MTA retaliated against her for filing the SDHR Complaint by disciplining her and denying her specific requests for training.
Plaintiff first argues that Terrett threatened to transfer Plaintiff to the Communications Unit shortly after he learned that she had scheduled an appointment with OCR. Plaintiff has established a prima facie case of retaliation. Although Defendants do not dispute that Plaintiff has satisfied the first two elements of her prima facie case (Defs.’ Mem. 20), they claim that Terrett never threatened to transfer Kellman to the Communications Unit (Defs.’ 56.1 Stmt. ¶ 57; Defs.’ Resp. PL’s 56.1 Stmt. ¶ GGG). Plaintiff’s allegation is supported by her deposition testimony, declaration, and OCR Complaint (Kellman Dep. 182:12-24; Kellman Deck ¶ 21; Jeremías Decl. Ex. H, at D00012964), and Defendants’ denial of the allegation is supported by Terrett’s deposition testimony (Terrett Dep. 128:14-17). “[A]s a general rule, a district court may not discredit a witness’s deposition testimony on a motion for summary judgment, because the assessment of a witness’s credibility is a function reserved for the jury.” Fincher,
Defendants next argue that even if Terrett threatened to transfer Plaintiff, the threat was not a materially adverse action. Title VII’s “antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.” Burlington N. & Santa Fe Ry. Co. v. White,
In keeping with this standard, “a lateral job transfer that does not affect an employee’s salary or title may be the basis for a Title VII retaliation claim only if the reassignment would have been viewed by a reasonable employee as being materially adverse.” Kaytor v. Electric Boat Corp.,
“[B]ecause the Burlington Northern standard requires consideration of an alleged retaliatory act in the context of the plaintiffs particular circumstances, threats may meet [the material adversity] threshold.” Delaney v. LaHood, No. 07 Civ. 471,
Here, Plaintiff has raised a genuine issue of material fact as to whether, in the context at hand, a threat of transfer to the Communications Unit would have dissuaded a reasonable worker from making a charge of discrimination. Whereas Plaintiffs assignment in Grand Central involved supervising patrol officers and con
Plaintiff has also established a causal connection between her contact with OCR and Terrett’s threat to transfer her. Causation can be established “by showing that the protected activity was closely followed in time by the adverse employment action.” Gorzynski v. JetBlue Airways Corp.,
Defendants have not offered any explanation for Terrett’s threat. (Defs.’ Mem. 20; Defs.’ 56.1 Stmt. ¶57; Defs.’ Resp. PL’s 56.1 Stmt. ¶ GGG; Defs.’ Reply PL’s Resp. Defs.’ 56.1 Stmt. ¶ 57.) Therefore, Defendants have not met their burden under the second step of the McDonnell Douglas test, and summary judgment is inappropriate. See, e.g., Flynn v. N.Y. State Div. of Parole,
Next, Kellman argues that Dunn sent the Delaware State Police to her home and rescinded her previously approved day off in retaliation for filing the OCR Complaint. Kellman has established a prima facie case of retaliation. Defendants do not dispute that Plaintiff has met the first two elements of a prima facie case, instead arguing that ordering State Police to an individual’s house and rescinding vacation time do not constitute an adverse action. (Defs.’ Mem. 19-20.) However, a reasonable jury could find such actions to dissuade a reasonable worker from making a charge of discrimination. See Rivera,
Defendants also argue that Plaintiff has failed to establish a causal connection between the filing of the OCR Complaint and the Delaware State Police incident. If Defendants’ version of the facts is to be believed, approximately five weeks elapsed between the OCR Complaint filing and the Delaware Police incident. (Defs.’ 56.1 Stmt. ¶¶ 52, 56; Williams & Chan, supra.) Reading the facts in the light most favorable to Plaintiff, the Delaware Police incident occurred more than five but less than eight weeks after the OCR Complaint filing. (Jeremi-as Decl. Ex. I, at P04296; Kellman Decl. ¶ 22; Kellman Dep. 200:13-24, 207:9-13; Williams & Chan, supra.) Either way, the proximity between the two events is sufficient to satisfy the causal connection prong. See Garrett v. Garden City Hotel, Inc., No. 05 Civ. 962,
Defendants state a legitimate, nondiscriminatory rationale for withdrawing Kellman’s vacation day and instructing the Delaware State Police to inform her of the withdrawаl: by approving Kellman’s day off during the transit strike, Henry created a staffing shortage at Grand Central, and because Kellman was not answering her phone, Defendants needed to ask policemen located closer to her home to contact her in person. (Defs.’ 56.1 Stmt. ¶ 52.) Plaintiff, however, has raised an issue of material fact as to the truth of this rationale. Both Henry and Kellman testified that the incident occurred after the transit strike had ended. (Henry Dep. 339:4-340:24; Kellman Dep. 207:9-13.) The undisputed fact that Nash subsequently permitted Plaintiff to take the very same vacation day that Dunn rescinded provides further evidence that there was no staffing shortage. (Defs.’ Reply PL’s Resp. Defs.’ 56.1 Stmt. ¶ 52; Henry Dep. 340:6-7, 340:22-24; Kellman Dep. 205:21-206:6.) Moreover, Henry affirms that Dunn’s only stated rationale for rescinding the vacation day and contacting the Delaware State Police was that Nash
Even assuming there was a staffing shortage, Plaintiff provides compelling evidence that contacting the Delaware State Police was unwarranted. It is undisputed that the Delaware State Police incident occurred several days before the vacation day at issue was to occur. (Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 52R; Defs.’ Reply PL’s Resp. Defs.’ 56.1 Stmt. ¶ 52.) Defendants do not claim that they were under time-pressure to contact Kellman, nor do they explain why they did not attempt to contact Plaintiff by phone that evening or the following day. (Defs.’ 56.1 Stmt. ¶ 52; Defs.’ Reply Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 52.)
“Evidence satisfying the minimal McDonnell Douglas prima facie case, coupled with evidence of falsity of the employer’s explanation, may or may not be sufficient to sustain a finding of retaliation.” Kwan,
Here, Plaintiffs prima facie case is of adequate strength and her evidence that Defendants’ rationale is pretextual is quite strong. A reasonable juror, taking into account the evidence that there was no staffing shortage, that Defendants had several days to contact Plaintiff, and that Plaintiff was ultimately permitted to take the vacation day at issue, could find, that the Delaware State Police’s search of Plaintiffs home and the withdrawal of Plaintiffs vacation day would not have occurred in the absence of a retaliatory motive. See Kwan,
Next, Plaintiff argues that Defendants issued the May 23, 2006 LOI in retaliation for the OCR Complaint. (PL’s Opp’n 18.) Even assuming that the LOI issuance was an adverse action, the record does not indicate any causal connection between Kellman’s OCR complaint and the conduct at issue. Here, the temporal gap of more than six months between the OCR Complaint and the issuance of the LOI is unable to support an inference of causation
Plaintiff next argues that Defendants investigated the missing May 2006 Activity Report and filed the related Notice of Intent to Discipline in retaliation for her July 11, 2006 filing of an SDHR Complaint. (Pl’s Opp’n 18.) Assuming ar-guendo that Plaintiff has established a pri-ma facie case of retaliation, Defendants have set forth a legitimate, nondiscriminatory rationale for their actions: Kellman failed to complete the May Activity Report even though she was responsible for doing so, and subsequently, Kellman falsely told Terrett that she had not received Laker-am’s email instructing her to prepare the Report. (Defs.’ 56.1 Stmt. ¶¶ 21-23.)
No reasonable juror could find Defendants’ rationale to be pretextual. The record contains an email written by Kellman confirming that she was responsible for preparing activity reports if Laker-am was absent (Fuchs Decl. Ex. 12); Lak-eram’s June 7, 2006 email asking Kellman to complete the attached May Activity Report by June 10, 2006 (Fuchs Decl. Ex. 13); a Mail Envelope Properties report indicating that Kellman opened Lakeram’s email on June 18, 2006 and deleted it on June 25, 2006 (Fuchs Reply Decl. Ex. 7); Kellman’s September 15, 2006 Memorandum to Ter-rett stating, “I was never instructed by Sgt. Lakeram to prepare any monthly activity reports nor did I receive the template Sgt Lakeram used to complete them” (Fuchs Decl. Ex. 11); the signed Notice of Intent to Discipline (Fuchs Decl. Ex. 8); and Plaintiffs October 28, 2009 written admission that she “misinform[ed] ... Terrett concerning monthly activity reports” (Fuchs Decl. Ex. 10). Plaintiffs primary evidence in opposition is her deposition testimony that she only learned in or after August 2006 that she was responsible for preparing monthly activity reports, that she does not recall seeing Lakeram’s June 7, 2006 email until August 2006, and that there would have been no reason for her to ignore Lakeram’s email. (Kellman Dep. 114:17-115:4, 118:3-7, 120:10-13.) When viewed in the context of the record as a whole, this deposition testimony could not convince any reasonable juror that Defendаnts’ rationale is pretextual.
Nor does the record support an inference that retaliation was the but-for cause of or played a substantial role in the investigation and discipline relating to the activity reports. The only evidence in the record that supports an inference of retaliation is Plaintiffs testimony that she was not responsible for preparing activity reports and does not recall receiving Laker-am’s email until August 2006, Plaintiffs September 2006 memoranda to Terrett
Kellman also alleges that Defendants issued the October 30, 2006 LOI, which instructed her to review properly and timely all Departmental email correspondence, in retaliation for her SDHR Complaint. (Pl.’s Opp’n 18.) Assuming that Plaintiff has established a prima facie case of retaliation, Defendants have stated a legitimate, nondiscriminatory rationale for the LOI: Plaintiffs failure to review her email between October 12 and October 16, 2006 resulted in her absence at a scheduled meeting with Assistant Deputy Chief McLaughlin. (Defs.’ 56.1 Stmt. ¶¶ 27-28.) Kellman has not raised a genuine issue of material fact as to whether this rationale is pretextual. She admits that she did not check her email between October 12 and October 16, 2006. (Pl.’s 56.1 Stmt. ¶1/^.) She appears to argue that Defendants should have contacted her in person or via telephone in addition to emailing her, but does not claim that similarly situated individuals were contacted about similar matters in person or via telephone. (Id.) Kellman also argues that Defendants should have known that she would be unable to attend a 7:30 A.M. meeting, because she had standing permission to leave work at 6:30 A.M. so that she could take her daughter to schоol. (Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 27R; Jeremias Decl. Ex. M.) However, Kellman’s absence at the October 16 meeting was not due to her schedule, but due to her failure to check her email. The LOI chastised Plaintiff for her failure to read her email, not for her inability to attend the meeting. (Fuchs Decl. Ex. 9.) Neither this evidence nor the rest of the record could convince a reasonable juror that Defendants’ rationale is pretextual.
Plaintiff also has not raised a genuine issue of material fact as to whether retaliation was the but-for cause of or played a substantial role in the October 30, 2006 LOI. Kellman’s primary evidence of retaliation is that Dunn did not call her or contact her in person to tell her about the meeting, that Defendants should have known she was unable to attend the meeting, and that Terrett did not attempt to reschedule the meeting. (Pl.’s 56.1 Stmt. ¶ W; PL’s Resp. Defs.’ 56.1 Stmt. ¶ 27R.) This minimal evidence, in the context of the record, could not convince a reasonable juror that retaliation was a substantial motivation for the LOI.
Finally, Plaintiff argues that Defendants “denied Kellman’s specific requests for training” in retaliation for filing the OCR Complaint and the SDHR Complaint. (PL’s Opp’n 16.) Plaintiff spends six words on this argument in her Opposition brief, and does not cite to anything in the record. (PL’s Opp’n 16-19.) In her 56.1 Statement, Plaintiff speaks generally of retaliatory training denials, but identifies only one particular training denial as retaliatory: the May 2011 denial of Executive Protection Training. (PL’s 56.1 Stmt. ¶¶ HHH, PPP.) The temporal gap of nearly five years between the SDHR Complaint and this denial cannot support an inference of causation. See Garrett,
Accordingly, Defendants’ Motion for Summary Judgment is DENIED as to Plaintiffs retaliation claims regarding the threat to transfer her to the Communications Unit, the Delaware State Police incident, and the related rescinding of her vacation day. However, Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiffs retaliation claims regarding the May 2006 and October 2006 LOIs, the investigation into the missing May 2006 Activity Report and related Notice of Intent to Discipline, and the denial of training.
2. NYCHRL Claims
“[T]o prevail on a retaliation claim under the NYCHRL, the plaintiff must show that she took an action opposing her employer’s discrimination, and that, as a result, the employer engaged in conduct that was reasonably likely to deter a person from engaging in such action.” Mihalik,
Even after taking into account the NYCHRL’s “uniquely broad and remedial purposes,” no jury could find, based on the submitted evidence, that the issuance of the May 23, 2006 and October 30, 2006 LOIs, the investigation into the missing May 2006 Activity Report and related Notice of Intent to Discipline, and the denial of training were caused even partly by retaliatory motives. See id. at 115 n. 12 (citation omitted); Parris v. N.Y.C. Dep’t of Educ.,
E. Pattern or Practice of Discrimination Claims
Plaintiff maintains that Defendants’ conduct towards racial minorities in MTA PD amounted to a pattern or practice of discrimination. (Pl.’s Opp’n 21-22.) Although Title VII initially envisioned that the government would pursue pattern or practice claims, 42 U.S.C. § 2000e-6, courts have unequivocally granted private individuals the right to vindicate those claims. See Cooper v. Fed. Reserve Bank of Richmond,
Here, Kellman and her fellow plaintiffs have not brought their claims as a class action, and thus cannot assert pattern or practice claims of discrimination. Defendants’ Motion for Summary Judgment on these claims is hereby GRANTED.
F. Claims Against MTA and McCon-ville in His Official Capacity Under 42 U.S.C. §§ 1981 and 1983
Plaintiff alleges that MTA is liable under 42 U.S.C. §§ 1981 and 1983 for engaging in discriminatory conduct by subjecting her to disparate treatment, a hostile work environment, retaliation, and a pattern and practice of discrimination. Plaintiff also asserts claims under §§ 1981 and 1983 against individual Defendant Kevin McConville in his official capacity.
Section 1981 “outlaws discrimination with respect to the enjoyment of benefits, privileges, terms, and conditions of a contractual relationship, such as employment.” Patterson,
“[W]hen the defendant sued for discrimination under § 1981 or § 1983
In support of her claim that MTA had a custom or policy of discrimination, Kellman claims that Defendants and employees such as Terrett and Dunn took no action in response to the complaints of discrimination they received and engaged in retaliation. (Pl.’s Opp’n 23-24.) In particular, she points out that when an OCR investigator spoke to MeConville about Kellman’s Complaint, MeConville told the investigator of an incident in which Kell-man was allegedly “washing dishes instead of supervising [an] investigation.” (Jeremí-as Decl. Ex. RR, at D00012999.) Plaintiff reads this “washing dishes” comment as a racist and sexist remark, and states that she has no recollection of the incident MeConville described. (Pl.’s Opp’n 23; Kellman Decl. ¶ 23.) Plaintiff also alleges that MeConville acquiesced in discrimination by signing off on promotional orders and taking part in disciplinary actions. (Pl.’s Opp’n 23-24.) Finally, Plaintiff claims that not all MTA supervisors were well trained in MTA’s EEO Policy. (Pl.’s Opp’n 23-24.)
This evidence does not permit a finding that MTA had a policy or custom of discrimination. Plaintiffs allegations are, for the most part, non-specific and conclusory. The dishwashing comment does not approach a demonstration of a policy or custom, nor do the allegations about Terrett and Dunn suffice. Plaintiff has not, as required, “come forward with specific evidence demonstrating the existence of a genuine dispute of material fact” as to whether MTA had a policy or custom of discrimination. Great Am. Ins. Co.,
G. Claims Against MeConville in His Individual Capacity Under 42 U.S.C. §§ 1981 and 1983
Kellman also asserts claims under §§ 1981 and 1983 against Defendant MeConville in his individual capacity.
Plaintiff alleges that McConville was aware of the denials of Plaintiffs training requests, signed off on promotion orders and discipline, took no steps to investigate Plaintiffs OCR Complaint, and made the aforementioned dishwashing comment. (PL’s Opp’n 23-24.) The dish-washing comment, on its own, is not an adverse action, and accordingly, cannot subject McConville to individual liability under §§ 1981 and 1983. See Conklin v. Cnty. of Suffolk,
H. Claims Against Individual Defendants in Their Individual Capacities Under the NYSHRL and NYCHRL
Plaintiff asserts that Culhane and McConville should be held individually liable under the NYSHRL and NYCHRL as aiders and abеttors. Under the NYSHRL and NYCHRL, it is unlawful “for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this [provision], or to attempt to do so.” N.Y. Exec. Law § 296(6); Admin. Code N.Y.C. § 8-107(6). Actual participation in conduct giving rise to a discrimination claim may support liability under both statutes. See Malena v. Victoria’s Secret Direct, LLC,
Plaintiff allegés generally that McConville was aware of and approved MTA’s discriminatory promotion and
III. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED in part, DENIED in part, and decision is reserved in part, as follows:
(1) Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiffs disparate treatment claims brought under Title VII and the NYSHRL; Plaintiffs NYCHRL race- and sex-based disparate treatment claims concerning the denial of Executive Protection Training, Land Transportation Antiterrorism Training, Plainclothes Training, and Plaintiffs applications for promotion; and Plaintiffs NYCHRL sex-based disparate treatment claim regarding the denial of ICS Training;
(2) Defendants’ Motion for Summary Judgment is DENIED as to Plaintiffs NYCHRL race-based disparate treatment claim concerning the denial of ICS Training;
(3) Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiffs Title VII, NYSHRL, and NYCHRL retaliation claims concerning the issuance of LOIs, the investigation into the missing May 2006 Activity Report and the related Notice of Intent to Discipline, and the denial of training;
(4) Defendants’ Motion for Summary Judgment is DENIED as to Plaintiffs Title VII, NYSHRL, and NYCHRL retaliation claims concerning the threat to transfer Plaintiff to the Communications Unit, the Delaware State Police incident, and the related withdrawal of Plaintiffs vacation day;
(5) Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiffs pattern or practice claims brought under Title VII, the NYSHRL, the NYCHRL, § 1981, and § 1983;
(6) Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiffs § 1981 and § 1983 claims brought against MTA and the individual Defendants in their official capacities;
(7) Defendants’ Motion for Summary Judgment is GRANTED as to Plaintiffs § 1981, § 1983, NYSHRL, and NYCHRL claims brought against Culhane and McConville in their individual capacities, other than Plaintiffs hostile work environment claims; and
(8) Decision is reserved with respect to Plaintiffs hostile work environment claims brought against MTA under Title VII, the NYSHRL, and the NYCHRL, and brought against Culhane and McConville in their individual capacities under § 1981, § 1983, the NYSHRL, and the NYCHRL.
SO ORDERED.
Notes
. In a Scheduling Order dated September 24, 2010, the Court allowed separate Motions for Summary Judgment to be submitted for each individual Plaintiff in this action. This Memorandum and Order addresses only the Motion for Summary Judgment filed with respect to the claims instituted by Plaintiff Nzingha M. Kellman.
. Executive Protection Training is also known as Dignitary Protection Training or Specialized Protection Training. (PL’s 56.1 Stmt. ¶ DD.) It will be referred to as Executive Protection Training throughout this Memorandum and Order.
. MTA PD refers to applications as “abstracts.” (PL's 56.1 Stmt. ¶ L.)
. In 1997, the New York State Legislature created MTA PD, and on January 1, 1998, all Long Island Railroad Police Department and Metro-North Commuter Railroad Company Police Department employees were transferred to MTA PD. (Defs.’ 56.1 Stmt. Supp. Mot. Summ. J. Against Gordon Urquhart ¶ 7; Pl.’s Resp. Defs.’ 56.1 Stmt. Supp. Mot. Summ. J. Against Gordon Urquhart ¶ 7R.)
.Plaintiff argues that Sergeant Thomas Far-ney was assigned to the Communications Unit, and not ICTF, when he received the Training. (PL’s 56.1 Stmt. ÍFF; PL’s Resp. Defs.’ 56.1 Stmt. Í36R & n. 29.) However, time sheets make clear that Farney was assigned to ICTF at the time of the Training (Fuchs Reply Decl. Ex. 21; Jeremias Deck Ex. T, at P 04286), and the evidence Plaintiff offers in support of her contention shows only that Farney was assigned to the Communications Unit three months after the Training took place (Fuchs Decl. Ex. 35, at D00024404, D00024406; Jeremias Deck Ex. CC, at D00024404, D00024406).
. “The court may judicially notice a fact that is not subject to reasonable dispute because it ... can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).
. Although Plaintiff's Amended Complaint alleges that Defendants denied her a promotion to Lieutenant on the basis of her race and gender (Am. Compl. ¶ 153), the Court deems Plaintiff to have abandoned any disparate treatment claims regarding the Lieutenant promotion denial. Defendants' moving memorandum specifically addresses these claims, but Plaintiff’s Opposition brief fails to mention them in any way. (Defs.' Rev. Mem. Law Supp. Summ. J. ("Defs.' Mem.”) 12.) "[A]r-guments not made in opposition to a motion for summary judgment are deemed abandoned.” Plahutnik v. Daikin Am., Inc.,
.Plaintiff’s 56.1 Statement also discusses Defendants’ 2008 denials of her requests for DNA Collection Training and the Handling and Processing of Juveniles Course. (Pl.’s 56.1 Stmt. HHY-Z.) These allegations are not mentioned in Plaintiff’s Amended Complaint, nor did she seek to file a Second Amended Complaint in order to add these claims. Thus, to the extent that Kellman seeks to allege that these denials constitute additional instancеs of discrimination, these new discrimination claims are untimely and waived. Malmsteen v. Universal Music Grp., Inc.,
. No reasonable juror could agree with Plaintiff that Farney was assigned to the Communications Unit when he received the Training. (See supra n. 5; Fuchs Reply Decl. Ex. 21; Jeremías Decl. Ex. T, at P04286.)
. Barreto’s Declaration was submitted on reply. "[R]eply papers may properly address new material issues raised in the opposition papers so as to avoid giving unfair advantage to the answering party." Bayway Ref. Co. v. Oxygenated Mktg. & Trading A.G.,
. Terrett's Declaration was submitted on reply. "A district court enjoys broad discretion ... to rely on evidence submitted with the reply papers.” Dixon v. NBCUniversal Media, LLC,
. Plaintiff raised a new material issue when her Opposition brief stated, "Kellman's supervisors sent Sergeant Grascia, Caucasian, who reported to the same supervisors in Grand Central, to ... Land Transportation Antiter-rorism ... training.” (Pl.’s Opp’n 13-14.) Nothing in the record supрorts this statement, including the paragraph of Plaintiff's Response to Defendants’ 56.1 Statement to which her brief cites. (PL’s Resp. Defs.' 56.1
.Plaintiff claims that Johnston had never received CIC Training. (Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 46R.) In support, Plaintiff cites to a version of Johnston's abstract that is missing the page listing trainings Johnston participated in. (Compare Jeremias Decl. Ex. TT with Fuchs Reply Decl. Ex. 10.) The missing page, submitted by Defendants on reply, states that in 2002, Johnston attended the Fairfield County Detective Conference. (Fuchs Reply Decl. Ex. 10.) In Conner's deposition testimony and Reply Declaration, he notes that the Fairfield County Detective Conference is one of several equivalent CIC Trainings to which he would send detectives. (Conner Dep. 125:16-126:18; Conner Reply Decl. ¶ 7.) Plaintiff has not put forth any evidence indicating that Conner's testimony is untrue or that Johnston did not receive CIC Training. Accordingly, the Court does not find Plaintiff to have raised a genuine issue of material fact as to whether Johnston received CIC Training.
. Plaintiff’s submission of a version of Johnston’s abstract missing the page listing his trainings (Jeremias Decl. Ex. TT) warrants the Court’s consideration of the missing page (Fuchs Reply Decl. Ex. 10). See supra n. 10 (citing case).
. Plaintiff also cites to Jeremias Decl. Ex. MM, at D00007851. (Pl.’s Resp. Defs.' 56.1 Stmt. ¶ 46R.) However, Jeremias Decl. Ex. MM does not include page D00007851. Plaintiff’s citation of Exhibit MM, an MTA PD earnings report from 2004, appears to be a typographical error. (Jeremias Decl. Ex. MM.)
. Because a three-year statute of limitations applies to NYCHRL claims, only those incidents occurring on or after May 4, 2004 are actionable here. N.Y. City Admin. Code § 8-502(d); see Odom v. Doar,
. The Court considers this portion of Ter-rett’s Declaration, submitted on reply, because Plaintiff will suffer no prejudice from its consideration. See supra n. 11 (citing case).
. Although Plaintiff's Amended Complaint alleges that Defendants retaliated against Plaintiff by denying her a promotion to Lieutenant and harassing her during maternity- and pregnancy-rеlated leaves of absence (Am. Compl. ¶¶ 153-54), the Court deems Plaintiff to have abandoned any retaliation claims regarding the Lieutenant promotion denial or alleged harassment during maternity and pregnancy leaves. Defendants’ moving Mem
. Plaintiff appears to state, in her Response to Defendants' 56.1 Statement, that Defendants initiated an internal investigation regarding the conduct discussed in the LOI on December 9, 2005. (Pl.'s Resp. Defs.’ 56.1 Stmt. ¶ 18R.) In fact, the record shows only that the conduct discussed in the LOI occurred on December 9, 2005, and that a civilian filed a Civilian Complaint regarding that conduct at some point thereafter. (Id.; Fuchs Decl. Ex. 7.)
. "[F]ederal and state civil rights laws [are] a floor below which the City's Human Rights law cannot fall ...N.Y.C. Local Law No. 85 of 2005, at § 1 (Oct. 3, 2005). Thus, the Court denies without further analysis Defendants’ Motion for Summary Judgment on Plaintiff's NYCHRL retaliation claims regarding the threat to transfer Plaintiff to the Communications Unit and the Delaware State Police incident and related vacation day withdrawal. See Clarke v. InterContinental Hotels Grp., PLC, No. 12 Civ. 2671,
. Although the Amended Complaint also asserted claims against Elliot Sander, William Morange, and Terrance Culhane (Am. Compl. ¶¶ 16-17, 19), Kellman abandoned these claims when she failed to mention Sander, Morange, or Culhane in opposition to Defendants' discussion of Sander, Morange, and Culhane. (Compare Defs.' Mem. 22-24 with Pl.'s Opp'n 22-24); see supra n. 7 (citing cases).
. Although the Amended Complaint asserted a claim against Culhane (Am. Compl. ¶ 19), Kellman abandoned this claim when she failed to mention Culhane in opposition to Defendants' discussion of her claim against him. (Compare Defs.' Mem. 22-24 with Pl.’s Opp'n 22-24); see also supra n. 7 (citing cases).
. Because the Court reserves judgment on Plaintiff’s hostile work environment claims, the Court also reserves judgment as to Plaintiff's § 1981 and § 1983 hostile work environment claims brought against McConville in his individual capacity, and as to Plaintiff's NYSHRL and NYCHRL aiding-and-abetting claims regarding hostile work environment brought against McConville and Culhane in their individual capacities.