Etienne v. MTA N.Y.C. Transit Auth.

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2023 NY Slip Op 31120(U)

MARIE ETIENNE Plaintiff, v. MTA NEW YORK CITY TRANSIT AUTHORITY, Defendant.

Index No. 155727/2022, Motion Seq. No. 001

Supreme Court, New York County

April 10, 2023

Unpublished Opinion

Motion Date 09/12/2022

PRESENT: HON. LORI S. SATTLER, Justice

DECISION + ORDER ON MOTION

HON LORI S. SATTLER, JUSTICE

The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 12, 13, 14, 15, 16 were read on this motion to/for DISMISS.

Plaintiff Marie Etienne ("Plaintiff') commenced this action against Defendant MTA New York City Transit Authority ("Defendant") alleging discrimination based on race, religion, and national origin; hostile work environment; and retaliation in violation of the New York City Human Rights Law, New York Administrative Code § 8-107 ("City HRL"). Defendants move to dismiss the Complaint. Plaintiff opposes the motion.

As set forth in the Complaint (NYSCEF Doc. No. 15), Plaintiff, who states she is Black, Christian, and from Haiti, has been employed by Defendant since 1998. In 2009, she began working in Defendant's Capital Management Program, Outside Projects Unit, first as an Associate Staff Analyst/Project Coordinator, and then as an Associate Project Manager I. In 2017, she was promoted to Associate Project Manager II, a title she still holds. Plaintiff alleges she is primarily responsible for reviewing engineering plans of outside contractors working at or near Defendant's facilities to determine their effect on those facilities and to ensure the safety of those using the facilities. She contends she was qualified for all positions she has held in the unit, as she has a master's degree in Civil Engineering from the City University of New York and has always performed her job well.

The Complaint alleges that during the relevant period Plaintiffs immediate supervisors were Mohamed Adam, Rajen Udeshi, and David Chang. It states: "Upon information and belief Mr. Adam is Sudanese, Mr. Udeshi is Indian, and Mr. Chang is Asian. None are Christian" (Complaint ¶ 19). Plaintiff alleges that her supervisors failed to promote her until 2017, and that they falsely criticized her work. She specifically points to one instance where Mr. Adam told Mr. Udeshi that a determination Plaintiff made was not correct when "[i]n fact, it was correct" (id. ¶ 28). She alleges that she was not permitted to work overtime, although she concedes that she was permitted to work overtime from 2011 to 2014. She further alleges that she was not permitted to work through her lunch hour. She contends she was regularly talked down to, yelled at, given unrealistic deadlines, and told she was not completing her work in a timely fashion. The Complaint describes incidents where she and her supervisors disagreed about the substance of her work product. Plaintiff contends that workers who are not Black, Christian, or Haitian were not falsely criticized, were permitted work overtime, were not yelled at, were not pressured to finish projects quickly, and that their work was not routinely reviewed.

The Complaint refers to another employee in Plaintiff s department, Joelle Lichtman, who Plaintiff alleges is white, Jewish, and not Haitian. Plaintiff concedes that Ms. Lichtman is not an engineer (id. ¶ 25-26). She contends that Ms. Lichtman received two promotions during the period in which Plaintiff only received one. The Complaint does not indicate what positions Ms. Lichtman has held or what her qualifications are. Plaintiff further claims that Mr. Udeshi "repeatedly told Plaintiff that she does not know anything; while claiming that Ms. Lichtman knows 'everything'" and that her supervisors did not give Plaintiff credit for the work she did, while "Mr. Adam did Ms. Lichtman's work" (id. ¶ 35-36). Plaintiff details several days in 2017 when Ms. Lichtman allegedly took long breaks and "played games in the newspaper" but was not reprimanded, whereas "it is a problem if plaintiff returned from lunch a few minutes late" (id. ¶ 46).

Plaintiff served Defendant with a Notice of Claim on August 28, 2018 and filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC") on August 30, 2018. The EEOC issued a Notice of Right to Sue on November 19, 2018. The Complaint alleges that the criticism of her work and claims related to her ability to work overtime continued after Plaintiff took these actions, which she contends constitutes retaliation. In 2018, one of her supervisors placed a notation on her timesheet stating that she was required to swipe out and in for lunch every day but did not do so for another employee who held the same job title as Plaintiff held. She further contends that Ms. Lichtman "was chosen to speak for the Engineers at a conference; although she is not an Engineer. Plaintiff was not chosen" (id. ¶ 70).

Plaintiff commenced an action against Defendant in the United States District Court for the Eastern District of New York on February 15, 2019, asserting claims under Title VII of the United States Civil Rights Act, the New York State Human Rights Law ("State HRL"), and City HRL. After discovery was completed, Defendant moved for summary judgment dismissing those claims. On March 25, 2022, the District Court dismissed the Title VII and State HRL claims on their merits (Etienne v MTA New York City Transit, U.S. Dist Ct, ED NY, 19 CV 920, Dearie, J., 2022, NYSCEF Doc. No. 8). That Court found that Plaintiff failed to raise a triable issue of fact as to whether she was subject to adverse employment actions and, even assuming she was, as to whether those actions occurred in circumstances giving rise to an inference of discrimination. The Court declined to exercise supplemental jurisdiction over the City HRL claims and dismissed those without prejudice. Plaintiff then commenced this action.

Defendant now moves to dismiss the City HRL claims. It argues Plaintiff s claims are barred by collateral estoppel because the District Court found that Plaintiff failed to plead facts on which an inference of discrimination could be based and therefore Plaintiff is collaterally estopped from bringing the instant claims, since this is also an element of the City HRL. Defendant further argues that any claims alleged in the Complaint that purportedly occurred prior to November 25, 2015 are time-barred. Finally, it argues if addressed on the merits the Complaint fails to state a cause of action because Plaintiff does not plead differential, hostile, or retaliatory treatment sufficient to constitute City HRL violations and, even if she did, the Complaint's allegations that such treatment was under circumstances giving rise to an inference of discrimination are conclusory. In opposition, Plaintiff argues collateral estoppel cannot be found because the City HRL is more permissive than Title VII and the State HRL. She further argues that under the continuing violation doctrine, all of her claims are timely. Finally, she maintains that her Complaint pleads facts sufficient to survive a pre-discovery motion to dismiss.

Collateral estoppel precludes a party from "relitigating in a subsequent action an issue clearly raised and decided against that party in a prior action" (Ji Sim Jennifer Kim v Goldberg, Weprin, Finkel, Goldstein, LLP, 120 A.D.3d 18, 23 [1st Dept 2014]; see also Ryan v New York Tel. Co., 62 N.Y.2d 494, 500 [1984]). It is well established that claims brought under the City HRL must be analyzed separately and independently from Title VII and State HRL claims in order to understand and fulfill the City HRL's "uniquely broad and remedial purposes, which go beyond those of counterpart State or federal civil rights laws" (Russell v New York Univ., 204 A.D.3d 577, 578 [1st Dept 2022], quoting Williams v New York City Hous. Auth., 61 A.D.3d 62, 66 [1st Dept 2009]). "Federal and City Human Rights Law discrimination issues are not necessarily identical for collateral estoppel purposes, because the purposes of the City Human Rights Law go beyond those of counterpart federal civil rights laws" (Russell, 204 A.D.3d at 579). Although Plaintiff asserts facts identical to those in the prior federal action as the basis for her City HRL claims, the Court finds that her claims must still be examined because of the more liberal pleading standards that apply to City HRL claims (Russell, 204 A.D.3d at 579). Accordingly, Plaintiffs causes of action cannot be dismissed on the theory of collateral estoppel.

When considering a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), "the court is required to accept as true the facts as alleged in the complaint, accord the plaintiff the benefit of every favorable inference and strive to determine only whether the facts alleged fit within any cognizable legal theory" (Vig v New York Hairspray Co., L.P., 67 A.D.3d 140, 144-145 [1st Dept 2009], citing Sokoloff v Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 [2001]). However, "conclusory allegations - claims consisting of bare legal conclusions with no factual specificity - are insufficient to survive a motion to dismiss" (Godfrey v Spano, 13 N.Y.3d 358, 374 [2009], citing Caniglia v Chicago Tribune-N.Y. News Syndicate, 204 A.D.2d 233, 233-234 [1st Dept 1994]).

First Cause of Action - Discrimination

A plaintiff states a claim for employment discrimination under the City HRL by pleading facts sufficient to support a prima facie case that the plaintiff (1) is a member of a protected class, (2) was qualified for the position held, (3) was treated differently than other employees, and (4) that the employer's differential treatment occurred in circumstances giving rise to an inference of discrimination (Harrington v City of New York, 157 A.D.3d...