Phillips v. Long Island Rd. Co.

DOMINIQUE PHILLIPS, Plaintiff, v. THE LONG ISLAND RAIL ROAD COMPANY, Defendant.

CV 13-7317 (JS)(ARL)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

March 4, 2019

REPORT AND RECOMMENDATION

LINDSAY, Magistrate Judge:

Plaintiff Dominique Phillips ("Plaintiff") brings this action against defendant Long Island Railroad Company ("LIRR" or "Defendant") alleging, inter alia, that Defendant discriminated against him on the basis of his race subjecting him to a hostile work environment, disparate treatment, and disparate impact, retaliating against him because of complaints about discrimination and for using leave time and discriminated against him because of his disability. Before the Court, on referral from District Judge Seybert, is the motion by Defendant for summary judgment pursuant to Federal Rule of Civil Procedure ("Rule") 56. For the reasons set forth below, the Court respectfully recommends that Defendant's motion be granted.

BACKGROUND

I. Procedural History

On August 21, 2013, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") alleging that he was subjected to unlawful discrimination and retaliatory labor practices stemming from his initiation of a lawsuit against the LIRR to recover for an injury he sustained while on the job in August 2009. See Plaintiff's Affidavit in Opposition of Defendant's Motion For Summary Judgment ("Pl. Aff.") at Ex. 22. Plaintiff received a right to sue letter on September 23, 2013. Id. at Ex. 24. Plaintiff has not filed charges of discrimination with the New York City Commission on Human Rights or the New York State Division of Human Rights. Plaintiff filed his first Complaint in this Court on December 23, 2013 asserting job discrimination claims against the LIRR and United Transportation Union-Local 722 ("Union"). ECF No. 1. Plaintiff filed an Amended Complaint on March 30, 2015. ECF No. 23. By Order dated April 2, 2015, this Amended Complaint was rejected by the Court because Plaintiff had failed to seek leave to file the Amended Complaint.

On October 16, 2015, Plaintiff filed a Third Amended Complaint.¹ ECF No. 58. Plaintiff dropped all claims against the Union from the Third Amended Complaint, which was prepared with the assistance of counsel and asserts twelve causes of action.² ECF No. 58. Plaintiff asserts claims for violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. including claims for Hostile Work Environment (Count I), Disparate Treatment (Count II), Disparate Impact (Count III) and Retaliation (Count IV); violation of the Family Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601 et seq. for retaliation and discrimination (Count V); violation of Section 504 of the Rehabilitation Act, 29 U.S.C. § 794 (Count VI); discrimination under the Americans with Disabilities Act of 1990, as codified, 42 U.S.C. §§ 12112-12117 ("ADA") (Count VII); violation of the New York State Human Rights Law (the "NYSHRL"), N.Y. Executive Law § 296 (McKinney's 2005) (Count VIII); and violation of the New York City Human Rights Law, N.Y.C. Admin. Code ("NYCHRL") § 8-101 (Count IX- Race Discrimination), § 8-107(7) (Count X- Retaliation), § 8-107(1)(b) (Count XI-Race-Based Discrimination), and § 8-107(17)(A)(2) (Count XII-Disparate Impact). Boiled down, Plaintiff charges Defendant with discriminatory conduct under a variety of federal and state statutes all arising out of the same alleged wrongful conduct.

Defendant moved for summary judgment on each of Plaintiff's claims on February 12, 2018 seeking dismissal of Plaintiff's Third Amended Complaint based upon procedural deficiencies and on the grounds that based upon the undisputed facts no reasonable jury could conclude that the LIRR discriminated or retaliated against Plaintiff. In support of the motion, Defendant relied upon the Declaration of Brian K. Saltz dated September 21, 2016 ("Saltz Decl.") and the Memorandum of Law In Support of Defendant's Motion for Summary Judgment ("Def. Mem."). ECF No. 116. Plaintiff responded to Defendant's motion for summary judgment on May 9, 2018. Plaintiff relies upon Plaintiff's Affidavit in Opposition of Defendant's Motion for Summary Judgment and Plaintiff's Memorandum of Law In Opposition Of Defendant's Motion For Summary Judgment. ECF No. 126. On May 23, 2018, Defendant submitted a Reply Memorandum of Law In Support of Defendant's Motion For Summary Judgment ("Def. Reply Mem."). ECF No. 127. Plaintiff filed a supplemental response to Defendant's motion for summary judgment on May 29, 2018 consisting of an additional 217 pages of exhibits in opposition to Defendant's motion for summary judgment. ECF No. 129. By letter dated June 7, 2018, Defendant advised the Court that no additional response to Plaintiff's supplemental opposition was necessary. ECF No. 130. By Order dated April 25, 2018, Defendant's motion for summary judgment was referred to the undersigned to issue a Report and Recommendation. ECF No. 122.

II. Factual Background

The following facts are drawn from the parties' Local Rule 56.1(a) Statements and are uncontested unless otherwise noted.³

A. Employment History

Plaintiff, an African-American male, was first employed by the LIRR in February 2006. Def. Rule 56.1 Statement ¶¶ 1, 4. Plaintiff's only position at the LIRR was car appearance maintainer. In that position, he was responsible for cleaning, sweeping, mopping, and maintaining the interior of the trains. Id. at ¶ 5. Plaintiff worked at four LIRR yards - West Side Yard, Jamaica Yard, Hillside Yard, and Hempstead Yard. Id. at ¶ 6.

Plaintiff worked at the Hempstead Yard from October 2007 until October 2, 2012, with the exception of the period from October 2010 to January 2011, when he worked at Hempstead Station platform. Id. at ¶¶ 8, 26. Plaintiff was injured on the job in August 2009, placed on restricted duty after the injury, and had shoulder surgery in November 2009. Id. at ¶ 9. Plaintiff was out of work from November 2009 until September 2010, but was paid his salary during his time out of work. Id. at ¶ 10. Plaintiff filed a lawsuit against the LIRR as a result of the August 2009 injury. Id. at ¶ 11. Plaintiff alleges in the Third Amended Complaint that he "suffers from a qualified disability and was a qualified individual capable of performing the essential job functions of the job prior to his work-related injury and subsequent disability." 3^rd Am. Compl. ¶ 15. It appears that Plaintiff's shoulder injury is the disability he is referring to as nothing else is referenced in the complaint.

Plaintiff alleges that the discrimination and harassment he experienced at work began upon his return from disability leave in September 2010 while at the Hempstead Yard. Plaintiff's Rule 56.1 Statement ¶ 83. According to Plaintiff, he did not receive the work responsibilities that he should have received based upon his seniority. Def. Rule 56.1 Statement at ¶ 12. Plaintiff claims that gang foreman Frank Angiuli favored car appearance maintainer Keith Heyward, who is white. Id. at ¶ 19. Plaintiff contends that this co-worker, with less seniority, was assigned to clean the front of the glass of the train , perform paper runs, clean bathrooms, and to obtain supplies.⁴ Id. at ¶ 13. Plaintiff was unaware of any written policy providing that those with more seniority were entitled to these assignments. In fact no such policy existed and according to the Chairman of the Gang Foremen's Union gang foremen have the right to distribute work at their discretion. Id. at ¶ 15. Plaintiff nonetheless asserts that while there was no written policy it was his belief that it was customary for such assignments to be made on the basis of seniority. Pl. Rule 56.1 Statement at ¶ 84. Plaintiff, however, admits that he was also assigned to clean bathrooms from time to time. Def. Rule 56.1 Statement at ¶ 18. Moreover, Plaintiff also acknowledges that Alberta Hunt, an African-American woman, was often assigned to cleaning bathrooms. Saltz Dec., Pl. Dep. at 45-46.

Plaintiff alleges that in September 2010 foreman Angiuli required Plaintiff to clean trains using an orange scented cleaner and if the scent was not strong enough he was required to reclean the train. 3^rd Am. Compl. at 26. At his deposition, Plaintiff admitted that he was not disciplined for this action and that all car appearance maintainers, regardless of race, were required to use the orange scented cleaner. Def. Rule 56.1 Statement at ¶¶ 24, 25.

In support of his charge of discrimination, Plaintiff also alleges that while working at the Hempstead Station platform in September 2010,⁵ he and Jesse Ward - another car appearance maintainer - decided that they would use their own system to clean the trains. Under their improvised team system, Plaintiff cleaned the first three trains then Ward cleaned the next three trains and both of them cleaned the final train together. Id. at ¶ 27. While Ward was cleaning his trains, Plaintiff would hang out in his car in the commuter parking lot. Id. at ¶ 28. This "system" was not adopted by the other two teams of car appearance maintainers who worked at the platform. Id. at ¶ 29. When Gang foreman Angiuli learned of this he changed Plaintiff's "team system" of cleaning the trains. Id. at ¶ 30. Although Plaintiff admits that other car appearance maintainers who worked at the platform did not use this system to clean their trains, in the Third Amended Complaint Plaintiff alleges that similarly situated non-African-American employees were not subjected to this scrutiny or differing terms of employment. 3^rd Am. Compl. at ¶ 27. Plaintiff claims that he reported these incidents to his Union, although he did not report them to the LIRR. Id. at 31.

According to Plaintiff, Mr. Wittneben, a white male employee of the LIRR, became the supervisor and gang foreman for the Hempstead Yard in May 2011. Pl. Rule 56.1 Statement at ¶ 88. Plaintiff believes that gang foreman Wittneben favored Heyward...