Muhammad v. New York City Transit Authority

450 F.Supp.2d 198

Gladys MUHAMMAD, a/k/a Gladys Wilson, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY, Defendant.

No. 04-CV-2294 SLT.

United States District Court, E.D. New York.

September 20, 2006.

COPYRIGHT MATERIAL OMITTED

Armani B. Scott, Scott, Mason-Kinsey & Hart, LLP, Brooklyn, NY, for Plaintiff.

Richard Schoolman, New York Transit Authority, Brooklyn, NY, for Defendant.

MEMORANDUM and ORDER

TOWNES, District Judge.

Plaintiff, an African-American, Muslim woman who is currently employed as a bus driver, brings this employment discrimination action against her employer, defendant New York City Transit Authority (the "NYCTA" or "TA"), alleging gender, religious and racial discrimination. Defendant now moves pursuant to Fed.R.Civ.P 12(b)(6) to dismiss four of the eleven causes of action raised in plaintiff's Amended Complaint. For the reasons stated below, this motion to dismiss is granted in part and denied in part.

BACKGROUND

The following facts are set forth in plaintiff s Amended Complaint ("Am.Complt."), the allegations of which are assumed to be true for purposes of this motion. Plaintiff, who at all times relevant to this action has been a practicing Muslim, was hired by the TA as a bus driver in November 2001 (Am.Complt.¶¶ 6, 8). From the very start of her employment with the TA, plaintiff has worn a "khimar," a head covering required by her religion. Id. at ¶¶ 5, 10. She wore the khimar during her training and alleges, based on information and belief, that she was told religious headgear was permissible by "an MTA training officer." Id. at 12-13.

Plaintiff operated a bus out of the East New York depot without incident until July 2002, when a dispatcher directed her to wear a TA-issued baseball cap over her khimar. Although plaintiff retrieved a cap and brought it with her on her run, she never actually wore the cap while operating her bus. Id. at ¶¶ 16-17. The next day, plaintiff was approached by the General Manager of the East New York Depot and was told to either remove the khimar or wear the cap over it. Id. at ¶ 18. When plaintiff replied that the khimar was religious headgear, the General Manager told plaintiff that he would "get back to her" and permitted her to continue operating her bus. Id. at ¶¶ 19-20.

In late July or early August 2002, plaintiff met with the General Manager, a union representative, and an "as yet unknown high ranking MTA manager." Id. at ¶ 21. Although the managers were unaware of any policy which prohibited plaintiff from wearing her khimar, plaintiff was told that a specially fitted baseball cap would be made for her. That cap, however, was apparently never produced, and plaintiff— who completed her probationary period in November 2002 and transferred to the 126th Street Depot in Manhattan in January 2003—continued to operate her bus without incident until November 2003.

In November 2003, General Superintendent Cordell Rogers told plaintiff to remove her khimar or to wear a baseball cap while operating a bus in passenger service. Id. at ¶ 27. When plaintiff refused, she was at first assigned to clean bus windows at the depot, then dropped from the payroll. Id. at ¶¶ 28, 31-33. After plaintiff contacted her union, she was permitted to return to work full time in mid-December 2003, initially washing windows and subsequently working a "shifting trick." Id. at ¶¶ 34, 38-39. The Amended Complaint states that, as of June 21, 2004, plaintiff had been working the "shifting trick"—in which she transports buses without passengers and has Saturdays and Sundays as her regular days off ("RDO's")—continuously since January 5, 2004. Id. at ¶¶ 39-40.

Although the "shifting trick" is apparently a desirable assignment, plaintiff alleges that she did not request this assignment and that it has disadvantages. She has no contact with riders, is ineligible for overtime, and cannot "pick" her RDO's like other TA employees. Id. at ¶¶ 44-46. She also claims that because fellow employees resent the fact that she has weekends off despite her low seniority, she has become "an object of scorn and ridicule from more experienced employees" and "has had to endure a daily barrage of taunts and threatening behavior from her male co-workers who are angry that [she] was given ... the most coveted RDO's." Id. at ¶¶ 42-43.

After being assigned to the "shifting trick," plaintiff filed "grievances ... with the U.S. Equal Employment Opportunity Commission" ("EEOC"). Id. at ¶ 50. Although plaintiff does not attach a copy of the charges she filed with the EEOC or specifically describe them in her Amended Complaint, she does attach a copy of her "right to sue" letter, dated March 4, 2004, in which the EEOC informed plaintiff that it was unable to conclude that the TA had violated any "statutes." Id. at ¶ 51 and Ex. E. On June 3, 2004, plaintiff initiated this action.

In her Amended Complaint, plaintiff sets forth eleven causes of action. Four of the eleven are at issue here: the seventh cause of action ("Claim Seven"), which advances a Title VII Hostile Work Environment Claim; the eighth cause of action ("Claim Eight"), which alleges race discrimination under Title VII; the tenth cause of action ("Claim Ten"), which alleges a violation of New York City Administrative Law § 8-107(1); and the eleventh cause of action ("Claim Eleven"), which seeks to recover damages for a violation of Article I, section 3, of the New York State Constitution.

Defendant now moves to dismiss these four claims. First, defendant argues that plaintiff has not stated a hostile work environment claim because her co-workers' hostility is not based on race, gender or religion, but is due to the perception that plaintiff has been accorded favorable treatment. Second, defendant argues that plaintiff did not allege race discrimination in her EEOC charge, and therefore cannot raise a Title VII race discrimination claim. Third, defendant asserts that plaintiff's claims under the New York City Administrative Code must be dismissed because New York Public Authorities Law ("PAL") § 1266(8) specifically exempts the TA from liability under the New York City Administrative Code. Finally, defendant argues that Claim Eleven must be dismissed because Article I, section 3, of the State Constitution does not support a private right of action. These four arguments, and plaintiff's responses thereto, are discussed in more detail below.

DISCUSSION

A. The Standard for Dismissal Pursuant to Fed. R. Civ. Pro. 12(b)(6)

In considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, a court must accept all of the factual allegations in the complaint as true and must draw all reasonable inferences in the plaintiff's favor. See, e.g., Board of Educ. of Pawling Cent. Sch. Dist. v. Schutz, 290 F.3d 476, 479 (2d Cir.2002), cert. denied, 537 U.S. 1227, 123 S.Ct. 1284, 154 L.Ed.2d 1088 (2003); Jaghory v. New York State Dept. of Educ., 131 F.3d 326, 329 (2d Cir.1997). Defendant bears the burden of proof, Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir.), cert. denied, 540 U.S. 1012, 124 S.Ct. 532, 157 L.Ed.2d 424 (2003), and a court "may not dismiss a complaint unless `it appears beyond doubt, even when the complaint is liberally construed, that the plaintiff can prove no set of facts which would entitle him to relief.'" Jaghory, 131 F.3d at 329 (quoting Hoover v. Ronwin, 466 U.S. 558, 587, 104 S.Ct. 1989, 80 L.Ed.2d 590 (1984) (Stevens, J., dissenting)).

"Because a Rule 12(b)(6) motion challenges the facts alleged on the face of the complaint ... or, more accurately, the sufficiency of the statements in the complaint," see Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied sub nom. Cortec Indus., Inc. v. Westinghouse Credit Corp., 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992), only certain matters outside of the four corners of plaintiff's pleading may be considered. As the Second Circuit has stated:

When determining the sufficiency of plaintiffs' claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiffs' amended complaint ..., to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.

Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir.1993) (citing Cortec, 949 F.2d at 47-48). If material other than that listed by the Brass Court is "presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in [Federal Rule of Civil Procedure] 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion. . .." Faulkner v. Beer, 463 F.3d 130, 133, 2006 WL 2588014, at *2 (2d Cir. Sept.8, 2006) (quoting Fed.R.Civ. P. 12(b)).

B. Claim Seven: The Title VII Hostile Work Environment Claim

Defendant's first argument seeks to dismiss Claim Seven on the ground that plaintiff has not alleged that she was subjected to hostility because of her religion, gender, race or membership in a protected class. Defendant asserts that Claim Seven implies that plaintiff's coworkers' hostility stemmed from the fact that she "was given regular days off that should have gone to more senior employees," Am. Complt. at ¶ 106, and not because of her religion, sex or race. See Memorandum in Support of Defendant's Motion to Dismiss ("Defendant's Memo") at 2. In response, plaintiff does not assert that the hostility itself stems from any of these protected characteristics, but states that the "insults and taunts ... are a direct result of the NYTA's decision to discriminate against African-American Muslim women and treat them differently from their other employees." Plaintiff's Memorandum of Law in Opposition to Defendant's Motion to...