Louis v. Metropolitan Transit Authority et al

Filing 77

ORDER granting in part and denying in part 64 MTA Bus Defendants' Motion for Summary Judgment; granting 65 City Defendants' Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 11/6/2015. (Shamah, Adam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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MARIA LOUIS
Plaintiff,

MEMORANDUM AND ORDER
12-CV-6333 (ILG) (JO)

- against THE METROPOLITAN TRANSIT
AUTHORITY, ET AL.,
Defendants.
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GLASSER, Senior United States District Judge:
Plaintiff Maria Louis (“Louis”) brought suit against the Metropolitan Transit
Authority Bus Company (“MTA”) and its bus driver, Stephen Wright (collectively “MTA
Defendants”), as well as the City of New York (“City”) and its police officer, Crystal
Martin (collectively “City Defendants”), under 42 U.S.C. § 1983, asserting claims based
on the First, Fourth, and Fourteenth Amendments. Plaintiff, a Muslim woman, claims
that she was ejected from a public bus because she was wearing a burqa. After discovery,
the MTA Defendants and City Defendants moved for summary judgment. Plaintiff
opposed the MTA Defendants’ motion. For the following reasons, the City Defendants’
motion is GRANTED. The MTA Defendants’ motion is DENIED in part and GRANTED
in part.1

Plaintiff asserts claims against Wright and Martin in both their official and individual
capacities. But official-capacity suits “represent only another way of pleading an action
against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159,
165–66 (1985) (quotation omitted). Accordingly, those claims are routinely dismissed as
duplicative when the municipality is also a defendant. See, e.g., Thomas v. Venditto, 925
F. Supp. 2d 352, 364 (E.D.N.Y. 2013); Volpe v. Nassau Cnty., 915 F. Supp. 2d 284, 298
(E.D.N.Y. 2013). Because Plaintiff has also sued the MTA and the City, her claims
against the individual defendants in their official capacities are dismissed.
1

1

1
1.1

Factual Background

May 26, 2012 Dispute
On the morning of May 26, 2012, Louis was a passenger on a Q110 bus in Queens.

Louis Dep. at 68;2 Wright Dep. at 33–34.3 A devout Muslim, Louis was wearing a burqa
(a veil that covers the entire body), a symbol of her religion. Louis Dep. at 19, 70. Louis
testified that she was standing in the passenger area at the front of the bus, one seat’s
length behind Defendant Wright, the bus driver. Id. at 72–74, 76, 83.
Louis claims that during the ride, Wright called her “scary” and said “nobody can
see her.” Hrg. at 27; Dep. at 70–71, 81–82. She testified that, in response, she told
Wright that she is a Muslim and has a right to practice her religion. Dep. at 82. She
claims that Wright then stopped the bus and ordered her to leave. Id.; Hrg. at 27. Louis
refused and called 911 to report discrimination. Louis Dep. at 83–85, 101.
Wright tells a different story. He claims the dispute began when he told Louis to
step behind the white line at the front of the bus. Dep. at 42–43, 46. Wright swears that
Louis was standing on the line, id. (which is unlawful4)—but Louis denies that. Louis
Dep. at 76–77. Wright, however, insists that Louis repeatedly refused to step back,
became angry, and loudly accused him of discrimination. Dep. at 42–44, 46–48. Wright

Louis twice testified under oath in relation to this action. First, on September 12, 2012,
she testified at a hearing that was held under Section 1276 of New York Public
Authorities Law. See Ferrier Decl., Ex. G, Dkt. No. 64-11 (“Hrg.”). Second, she was
deposed on December 10, 2013. See Ferrier Decl. Ex. B, Dkt. No. 64-6 (“Louis Dep” or,
where context allows, “Dep.”).
2

3

Ferrier Decl., Ex. C, Dkt. No. 64-7 (“Wright Dep.” or, where context allows, “Dep.”).

4

Ferrier Decl., ¶ 4 (citing 17 N.Y. CRR 720.4(C)(1)(f)).
2

testified that although he felt threatened by Louis’ behavior, he did not respond. Id. at
47–48, 103–104. He simply got off the bus and called MTA dispatch. Id. at 47.5
There is a recording of Wright’s call. At the start, Wright can be heard saying, “I
don’t know if she would stab me in the back.” Audio: Call from Stephen Wright to MTA
Bus Dispatch (May 26, 2012) (“Call Audio”)6; accord Wright. Dep. at 105, 124. To the
dispatcher, Wright says:
I got a situation. . . . [A passenger] dressed head to toe . . . comes standing right
up beside me. I was very uncomfortable because I don’t know if it is a man; I
don’t know if it’s a woman; I don’t know what it is. So I just asked this person . . .
[to] step to the back [or middle] of the bus or . . . [to] a seat on the bus. But [it
got] right up on to me . . . and I can’t tell what it is. . . So I stopped the bus. . . .
Call Audio.
In response, the dispatcher asks whether Wright stopped the bus because he
could not determine a passenger’s gender. Id.
Wright responds, “No. No. No. The person is right up beside me [and] the driver’s
seat. And that bus is empty . . . with seats everywhere . . . and [she] is dressed from head
to toe . . . I can’t distinguish nothing.” Id.
The next few seconds of the call are inaudible. Id. In his deposition, Wright
testified that he told the dispatcher that Louis was irate. Dep. at 49–50, 105. But he
concedes that during the call he did not mention the white line. Id. at 49–50, 110–113.
At the end, the dispatcher agrees to send a supervisor to assist Wright. See Call Audio.

Wright, of course, denies being motivated by Louis’ burqa or religion; although he
knows that some Muslims (and Hindus) wear burqas, he claims he did not know that
Louis was a Muslim. Id. at 107–108, 114.
5

6

Ferrier Decl., Ex. I, Dkt. No. 64-13.
3

The police—Defendant Martin and her partner—responded to Louis’ 911 call.
They spoke to Louis first. Louis Dep. at 97–99; Wright Dep. at 57. Louis gave a
statement and reported that she was a victim of discrimination. Louis Dep. at 98. When
the police asked if she wanted to stay on the bus, Louis said yes. Id. According to Louis,
during the exchange, one of the officers said, “I wish I could see [Louis’] face.” Id. at 97.
The officers then spoke to Wright, outside the bus. Louis Dep. at 98–99; Wright
Dep. at 59. Wright told them that because of Louis’ reaction to his order to step back, he
felt unsafe and wanted her off the bus. Id. at 60–61, 104–105. At the officers’ request,
Wright produced a free bus transfer pass for Louis. Id. at 62.
Louis, still on the bus, started to record a video. Louis Dep. at 99. The video
shows Martin enter the bus and say “[Wright] wants you off the bus. . . . If he’s not
comfortable with you on the bus, he has every right to express so.” Video: Maria Louis
Cellphone Video (May 26, 2012). Martin gives Louis the transfer pass and tells her to
leave. Id. Louis grudgingly complies, walking to a cab. Id.; see Louis Dep. at 99–100.7
Wright drove away before his supervisor arrived. Wright Dep. at 63–64.
1.2 Aftermath
A few days after May 26, 2012, Louis complained to the MTA by phone and in
writing. Louis Dep. at 111, 137–40.8 Several weeks later, on June 22, 2012, Louis filed a
notice of claim against the MTA (amended July 27, 2012).9 Ultimately, Wright was

Martin’s testimony does not add detail. During her deposition, she could not
remember anything about the dispute or her response. See, e.g., Martin Dep. at 33:6–8
(Ferrier Decl., Ex. H, Dkt. No. 64-12).
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8

See Brewington Decl., Ex. W, X & Y, Dkt. No. 70-5.

9

Brewington Decl., Ex. O & P, Dkt. No. 70-5.
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reprimanded by the MTA for leaving the scene on May 26, 2012 before his supervisor
arrived. Wright Dep. at 19–20, 23, 64.
Louis claims that after May 26, 2012, she stopped riding the Q110 bus, and
approximately one year later, in May or June 2013, moved to Philadelphia. She testified
that she did not feel safe in New York and that the place to which she was moving has a
larger Muslim population. Dep. at 12–13, 15; Hrg. at 69–70.
As for physical, mental, emotional, and other injuries, Louis claims to have
suffered trauma, which caused headaches, high blood pressure, depression, anxiety, and
weight loss. She testified that she can no longer read, write, or work, among other
things. Dep. at 30, 153–54; Hrg. at 5–8, 30–31, 50–51, 64.
1.3 MTA Policies
Although there is some evidence of the MTA’s policies regarding training and
driver authority, the facts are incomplete.
Wright testified that when he started working for the MTA in 2003, he was
trained in customer relations. Wright Dep. at 9.
The record contains excerpts from the MTA Department of Buses Rules and
Regulations (“Rules”)10 and Student Bus Operator Instruction Manual (“Manual”).11
The Rules require, among other things, drivers to “treat all customers . . . with courtesy,
avoid argument and exercise patience, forbearance and self-control,” and “be attentive
without being offensive.” Rule 10(c). They prohibit drivers from using “loud, uncivil,
indecent, or profane language even under the greatest provocation.” Rule 10(d).

10

Brewington Decl., Ex. T, Dkt. No. 70-5.

11

Brewington Decl., Ex. U, Dkt. No. 70-5.
5

The Rule governing ejectment states:
(a) In case of ejectment of a customer, no more force must be used than is
necessary to remove the customer from the car, bus, or System property. No
blows must be struck nor weapons used by employees, unless absolutely
necessary for the defense of themselves or other persons, and under all
circumstances care must be taken for the safety of customers. When the
customer voluntarily leaves . . . or shows willingness to do so, no hand must
be laid on such person except to give needed assistance.
(b) When an ejectment or arrest is made, a full report must be made as in
accident cases. Equal care must be taken to obtain names and addresses of
witnesses, particularly the district/precinct number of the police officer, if
any, assisting in an ejection or arrest.
Rule 31 (emphasis added).
The Manual states that before removing a bus from service, drivers must receive
authorization from their dispatcher. Manual at 120. It also details procedures for
reporting incidents. Id. at 152–55.
Martin’s deposition testimony explains the role of police officers. Martin testified
that she has not been trained in removing passengers; that she has discretion to remove
passengers for safety reasons; and that she has never had to override a driver’s decision
to eject a passenger. Dep. at 25–26, 39–40, 42. She testified that passengers who do not
comply with safety rules “do not have a right to remain on the bus,” and that the bus
driver “has that determination.” Id. at 62. When there is a dispute, rather than
“automatically ask the [passenger] to leave,” Martin usually speaks to the passenger and
driver and attempts to negotiate a resolution. Id. at 62–63. Martin claims that she does
not necessarily side with the driver, and that she would not support ejecting a passenger
who only wore a burqa or stood on the white line. Id. at 71–73. However, Martin
testified that if a driver were to refuse to drive with a particular passenger, she would
have no “choice but to ask [the passenger] to leave.” Id. at 72.

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1.4 Procedural History
Plaintiff commenced this action on December 26, 2012.12 On March 19, 2015, the
MTA Defendants and City Defendants moved for summary judgment. Dkt. Nos. 64–68.
Plaintiff opposed only the MTA Defendants’ motion. Dkt. No. 71.
2

Legal Background

Summary judgment is appropriate “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). “An issue of fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Fincher v. Depository
Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (citations and quotation
omitted). “A fact is material if it might affect the outcome of the suit under the
governing law.” Id. In deciding a motion for summary judgment, the court must
“construe the facts in the light most favorable to the nonmoving party” and “resolve all
ambiguities and draw all reasonable inferences against the movant.” Brod v. Omya, Inc.,
653 F.3d 156, 164 (2d Cir. 2011) (quotation omitted). Where, as here, a non-moving
party fails to respond, “the district court may not grant the motion without first

The original and amended complaints (Dkt. Nos. 1, 27) name defendants who have not
been served or identified, and who, consequently, are not part of this action. First, the
original and amended complaints name an unidentified bus driver involved in an
alleged April 3, 2012 incident on a Q1 bus, which is operated by the New York City
Transit Authority (NYCTA). Second, the amended complaint asserts claims against the
NYCTA and New York Police Department (NYPD). But these parties were never served.
And, in any event, NYPD cannot be sued because it “is an organizational subdivision of
the City of New York, lacking independent legal existence.” Maier v. N.Y. City Police
Dep't, No. 08-CV-5104, 2009 WL 2915211, at *2 (E.D.N.Y. Sept. 1, 2009); see also
Burroughs v. Dorn, No. 13-CV-03609, 2013 WL 3820673, at *3 (E.D.N.Y. July 22,
2013). Third, Plaintiff agreed to discontinue the action against the Metropolitan Transit
Authority (an entity related to Defendant MTA Bus Company—herein just “MTA”). See
Dkt. Nos 10, 19. Thus, only the MTA, City, Wright, and Martin are defendants—and their
involvement is limited to the May 26, 2012 incident.
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examining the moving party’s submission to determine if it has met its burden of
demonstrating that no material issue of fact remains for trial.” Vermont Teddy Bear Co.
v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004) (citation omitted).
Section 1983 creates a cause of action against “[e]very person who, under color of
any [state] statute, ordinance, regulation, custom, or usage” deprives another of “rights,
privileges, or immunities secured by the Constitution and laws. . . .” 42 U.S.C. § 1983. The
statute “itself creates no substantive rights; it provides only a procedure for redress for
the deprivation of rights established elsewhere.” Sykes v. James, 13 F.3d 515, 519 (2d Cir.
1993), cert. denied, 512 U.S. 1240 (1994) (citing City of Oklahoma City v. Tuttle, 471 U.S.
808, 816 (1985)). To prove a Section 1983 claim, a plaintiff must show: (1) that the
defendant acted under color of state law; and (2) that, as a result of the defendant’s
actions, the plaintiff was deprived of rights or privileges secured by the Constitution and
laws of the United States. Annis v. County of Westchester, 136 F.3d 239, 245 (2d Cir.
1998); Eagleston v. Guido, 41 F.3d 865, 872 (2d Cir. 1994).
3

Claims against Wright

3.1 Wright Was Acting Under the Color of State Law
The parties dispute whether Wright acted under the color of state law.
State employees act under the color of state law when they act (1) in their official
capacity “clothed with the authority of state law,” or (2) “under ‘pretense’ of law” by
purporting to act with official sanction. Sazon Inc. v. New York, No. 11-CV-3666, 2011
WL 5910171, at *4 (S.D.N.Y. Nov. 28, 2011) (quoting West v. Atkins, 487 U.S. 42, 49
(1988); Screws v. United States, 325 U.S. 91, 111 (1945)); accord Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 88 (2d Cir. Sept. 2, 2015). Even employees that
“misuse[]” authority (for example, by exceeding it) act under the color of state law, so
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long as they “carry a badge of authority of a State and represent it in some capacity.”
Nat’l Collegiate Athletic Ass’n v. Tarkanian, 488 U.S. 179, 191 (1988); accord Gleason v.
Scoppetta, 566 F. App’x 65, 69 (2d Cir. 2014); Sazon, 2011 WL 5910171, at *3. Only
purely private conduct and “acts of officers in the ambit of their personal pursuits” are
beyond Section 1983’s reach. Monsky v. Moraghan, 127 F.3d 243, 245 (2d Cir. 1997).
Wright was acting under the color of state law when he ordered Plaintiff to move
to the rear and to leave the bus. On a public bus, the driver’s commands are clothed with
state authority. At a minimum, Wright could act as if he had authority to eject Louis,
even if, in fact, he did not. See Nat’l Collegiate Athletic Ass’n, 488 U.S. at 191; see Griffin
v. Maryland, 378 U.S. 130, 135 (1964) (“If an individual is possessed of state authority
and purports to act under that authority, his action is state action.”); Emanuele v. Town
of Greenville, 143 F. Supp. 2d 325, 331 (S.D.N.Y. 2001) (“One who lacks actual authority
nonetheless acts under color of state law if he purports to act according to official
power.”). Accordingly, on the bus, Wright was acting under the color of state law.
After the police arrived, Wright continued to act under the color of state law.
There is evidence that after Plaintiff refused to leave, Wright obtained police assistance
to eject her. Louis told the officers that she was a victim and wanted to stay on the bus.
After hearing from Wright, however, the officers told Louis to leave because Wright was
uncomfortable with her. A jury could conclude that the officers carried out Wright’s
wishes rather than their own, particularly in light of Martin’s testimony that the driver
usually “determin[es]” whether passengers can remain on the bus, and that if a driver
were to refuse to continue with a particular passenger, she would have no “choice but to
ask [the passenger] to leave.” Indeed, Martin essentially testified that, after exhausting
peacemaking efforts, officers defer to the driver’s determination regarding the
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passenger’s status. This is unsurprising, given the driver’s role. Because Wright’s
position allowed him to obtain police assistance to eject Louis, Wright acted under the
color of state law.
Having found sufficient evidence that Wright acted under the color of state law,
the Court turns to the substance of Plaintiff’s claims.
3.2 First Amendment Claim
Plaintiff’s brief is best construed as asserting a First Amendment retaliation
claim. See Pl. Br. at 11 (arguing that “Defendant Wright removed Plaintiff from the bus
because [sic] the fact that she exercised her First Amendment right to wear religious
dress”); id. at 8–13.
Generally, “a section 1983 claim will lie where the government takes negative
action against an individual because of his exercise of rights guaranteed by the
Constitution.” Friedl v. City of New York, 210 F.3d 79, 85 (2d Cir. 2000); see also
Mozzochi v. Borden, 959 F.2d 1174, 1179 (2d Cir. 1992). “Although developed in the
context of public employee speech, this principle also applies to private individuals who
public officials punish for their speech.” Smith v. Metro N. Commuter R.R., No. 98-CV2528, 2000 WL 1449865, at *4 (S.D.N.Y. Sept. 29, 2000) (citations omitted). To prove
retaliation, “a plaintiff must show: (1) he has a right protected by the First Amendment;
(2) the defendant’s actions were motivated or substantially caused by plaintiff’s exercise
of that right; and (3) the defendant’s actions caused him some injury.” Smith v.
Campbell, 782 F.3d 93, 100 (2d Cir. 2015) (quotation omitted).
In this case, the first element—a protected right—is met. A Muslim woman’s right
to wear a burqa is generally protected by the First Amendment’s free exercise and free
speech clauses. Cf. Burgin v. Henderson, 536 F.2d 501 (2d Cir. 1976); Nicholas v.
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Tucker, 89 F. Supp. 2d 475, 479 (S.D.N.Y. 2000) aff’d, 40 F. App’x 642 (2d Cir. 2002);
Lewis v. New York City Transit Auth., 12 F. Supp. 3d 418, 456 (E.D.N.Y. 2014); accord
Nichol v. ARIN Intermediate Unit 28, 268 F. Supp. 2d 536, 557 (W.D. Pa. 2003).
The second element—retaliatory motive—requires “specific proof of defendants’
improper motivation,” which may include circumstantial or direct evidence. Media
Alliance, Inc. v. Mirch, No. 09-CV-0659, 2011 WL 3328532, at *5 (N.D.N.Y. Aug. 2,
2011). A plaintiff must prove that the defendant acted with specific intent to punish the
protected activity, but does not need to prove that the defendant knew that the activity is
protected. See Holley v. Cnty. of Orange, NY, 625 F. Supp. 2d 131, 141 (S.D.N.Y. 2009)
(holding that a defendant acted with retaliatory motive when he punished a plaintiff for
engaging in protected speech, even though the defendant incorrectly believed the speech
was an unprotected threat).
There is a genuine dispute regarding Wright’s motive. Although Wright claims
that Plaintiff was standing on the white line (which is prohibited), Plaintiff claims she
was standing in the front passenger area. On the phone with his dispatcher, Wright did
not mention the white line or say that Plaintiff caused him to order her to step back; he
stated that he told Plaintiff to move to a seat or to the middle or back of the bus. Thus,
there is a dispute regarding whether Wright had a legitimate reason to order Plaintiff to
step back. Plaintiff also testified that Wright made unprovoked and disparaging remarks
about her burqa, calling it or her “scary.” Moreover, on the phone, Wright expressed
discomfort with the burqa, although it should be noted that the call followed an
argument and Wright was upset. Viewing the evidence in the light most favorable to
Plaintiff, a reasonable jury could conclude that, without legitimate reason, Wright

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ordered Plaintiff to leave the front passenger area, motivated by, or substantially
because of, her burqa, and that when she refused, Wright ordered her off the bus.
There is sufficient evidence that Wright’s actions injured Plaintiff. The parties’
briefs focus on whether Plaintiff’s right to religious exercise was chilled. But “[c]hilled
speech is not the sine qua non of a First Amendment claim.” Dorsett v. Cnty. of Nassau,
732 F.3d 157, 160 (2d Cir. 2013). Rather, Plaintiff may “show either that [her] speech
has been adversely affected by the government retaliation or that [s]he has suffered
some other concrete harm.” Dorsett, 732 F.3d at 160 (citations omitted) (noting that a
loss of a government contract, additional scrutiny at a border crossing, revocation of
building permits, and refusal to enforce zoning laws are cognizable harms); see also
Lozada v. Weilminster, 92 F. Supp. 3d 76 (E.D.N.Y. 2015).
Here, the concrete harm requirement is satisfied by evidence that Plaintiff was
removed from the bus. Additionally, there is evidence that Plaintiff’s exercise of her
constitutional rights were chilled. Plaintiff testified that, as a result of Wright’s conduct,
she stopped riding the Q110 bus and moved to Philadelphia. This is sufficient “evidence
that the plaintiff’s behavior changed after the alleged retaliatory act.” Abel v. Morabito,
No. 04-CV-7284, 2009 WL 321007, at *4 (S.D.N.Y. Feb. 10, 2009) (citing Curley v. Vill.
of Suffern, 268 F.3d 65, 73 (2d Cir. 2001)). The fact that Plaintiff continues to wear a
burqa elsewhere does not preclude a finding of “actual chill.” See Jones v. Bay Shore
Union Free Sch. Dist., 947 F. Supp. 2d 270, 275 (E.D.N.Y. 2013) (finding a material
question of fact as to whether plaintiff’s First Amendment rights were actually chilled
where he continued criticizing public officials but stopped using certain forums); Bartels
v. Inc. Vill. of Lloyd, 751 F. Supp. 2d 387, 401 (E.D.N.Y. 2010).

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Accordingly, Defendant Wright is not entitled to summary judgment on Plaintiff’s
First Amendment retaliation claim.
3.3 Equal Protection Claim
The Equal Protection Clause of the Fourteenth Amendment prohibits state actors
from engaging in “intentional discrimination on the basis of protected classifications,”
and certain selective treatment. Pinter v. City of New York, 976 F. Supp. 2d 539, 565
(S.D.N.Y. 2013); accord Savino v. Town of Southeast, 983 F. Supp. 2d 293, 301 (S.D.N.Y.
2013) aff’d, 572 F. App’x 15 (2d Cir. 2014); Rodriguez v. Clinton, No. 05-CV-322, 2009
WL 261203, at *7 (N.D.N.Y. Feb. 4, 2009) aff’d, 357 F. App’x 355 (2d Cir. 2009).
Plaintiff asserts two equal protection theories: intentional discrimination and selective
treatment.13
3.3.1 Intentional Discrimination Theory
As a member of a protected class, see Barnes v. Fedele, 760 F. Supp. 2d 296, 301
(W.D.N.Y. 2011) (citing Bizzarro v. Miranda, 394 F.3d 82, 86 (2d Cir. 2005))
(“Membership in a particular religious faith will generally satisfy the protected-class
requirement.”), Plaintiff can proceed on an intentional discrimination theory.
Actionable intentional discrimination includes, among other things, applying a
neutral law or policy in an intentionally discriminatory way. Turkmen v. Hasty, 789 F.3d
218, 252 (2d Cir. 2015) (citing Brown v. City of Oneonta, 221 F.3d 329, 337 (2d Cir.

Defendants argue that Plaintiff cannot proceed under a selective treatment theory
because that theory was not mentioned in the amended complaint. MTA Reply Br. at 8.
But a “complaint need not set out the correct legal theory on which the claim is based, so
long as the complaint provides full notice of the circumstances giving rise to the
plaintiff's claims.” Morris v. Schroder Capital Mgmt. Int’l, 445 F.3d 525, 530 n.5 (2d Cir.
2006); see, e.g., Burwell v. Peyton, No. 12-CV-166, 2013 WL 1386290, at *4 n.3 (D. Vt.
Apr. 4, 2013) (complaint not required to specify intentional discrimination theory).
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2000)); see also Pyke v. Cuomo, 258 F.3d 107, 109 (2d Cir. 2001); Savino, 983 F. Supp.
2d at 301. Plaintiff argues that a neutral policy—the MTA’s policy on controlling and
ejecting passengers—was discriminatorily applied. Cf. Raza v. City of New York, 998 F.
Supp. 2d 70, 78–81 (E.D.N.Y. 2013) (police investigatory authority); Burwell, 2013 WL
1386290, at *5 (police use-of-force rules).
To succeed, Plaintiff must proffer evidence that, when applying that policy,
Wright was “‘motivated at least in part by a . . . discriminatory purpose.’” Doe v. Vill. of
Mamaroneck, 462 F. Supp. 2d 520, 546 (S.D.N.Y. 2006) (quoting United States v. City
of Yonkers, 96 F.3d 600, 612 (2d Cir. 1996)). To act with discriminatory purpose means
to “‘select[] or reaffirm[] a particular course of action at least in part because of, not
merely in spite of, its adverse effects upon an identifiable group.’” United States v. City
of New York, 717 F.3d 72, 93–94 (2d Cir. 2013) (citations omitted). However, Plaintiff
does not need to prove that Wright was “‘motivated solely, primarily, or even
predominantly by’ improper concerns [such as] religion.” Raza, 998 F. Supp. 2d at 79
(quoting City of Yonkers, 96 F.3d at 611). She need only show “that the alleged
‘discrimination was a substantial or motivating factor’ for the . . . action.” Id. at 80. This
may be proved by circumstantial or direct evidence, including, for example, “the
historical background of the challenged decision, antecedent events, departures from
normal procedures, and contemporary statements by decisionmakers.” Bloomingburg
Jewish Educ. Ctr. v. Vill. of Bloomingburg, N.Y., No. 14-CV-7250, 2015 WL 3604300, at
*19 (S.D.N.Y. June 9, 2015); accord Vill. of Arlington Heights v. Metro. Housing Dev.
Corp., 429 U.S. 252, 266–68 (1977).
In the context of claims against law enforcement officers, courts have held that
“where verbal statements are accompanied by an appreciable injury, an equal protection
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claim may be cognizable.” Ali v. Connick, No. 11-CV-5297, 2015 WL 5693677, at *4
(E.D.N.Y. Sept. 28, 2015) (collecting cases); see, e.g., Cole v. Fischer, 379 F. App’x 40, 43
(2d Cir. 2010). These courts held that “epithets may be regarded as direct evidence of . . .
animus and, when combined with . . . other unlawful actions, may establish an equal
protection violation.” Ali, 2015 WL 5693677, at *7.
Here, Plaintiff testified that Wright called her burqa “scary” and disparaged the
fact that she was fully covered. Defendants deny that these comments addressed
religion, citing testimony that Wright did not know that Plaintiff was a Muslim. This is a
credibility determination that must be left to a jury. See Floyd v. City of New York, 959
F. Supp. 2d 540, 571 (S.D.N.Y. 2013), appeal dismissed (Sept. 25, 2013) (citations and
quotation omitted) (“Because discriminatory intent is rarely susceptible to direct proof,
[courts consider] such circumstantial and direct evidence of intent as may be
available.”). For example, although Wright testified that a burqa is not necessarily
evidence of religion because “some [people] just wear the clothes because they want to
wear the clothes,” he admitted that he knows that Muslims (and Hindus) wear burqas or
similar garb. Dep. at 114–15. Moreover, as noted above, there is evidence that Wright
ordered Louis to the rear of the bus without a legitimate reason. That action, combined
with Wright’s comments and testimony about the burqa, could lead a reasonable jury to
conclude that Wright acted with discriminatory intent.
Moreover, ejection from a public bus is an appreciable injury. Cf. Adickes v. S. H.
Kress & Co., 398 U.S. 144, 171 (1970) (denial of service); Tabbaa v. Chertoff, 509 F.3d
89, 102 (2d Cir. 2007) (additional border scrutiny).
Therefore, Wright is not entitled to summary judgment on the equal protection
claim based on a theory of intentional discrimination.
15

3.3.2 Selective Treatment Theory
Plaintiff also asserts a theory of selective treatment, which requires proof that “(1)
[plaintiff] was treated differently from other similarly-situated individuals; and (2) the
differential treatment was based on impermissible considerations such as race, religion,
intent to inhibit or punish the exercise of constitutional rights, or malicious or bad faith
intent to injure.” Skehan v. Vill. of Mamaroneck, 465 F.3d 96, 110 (2d Cir. 2006)
overruled in part on other grounds by, Appel v. Spiridon, 531 F.3d 138 (2d Cir. 2008)
(quotation omitted); see also LeClair v. Saunders, 627 F.2d 606, 609–610 (2d Cir.
1980); Savino, 983 F. Supp. 2d at 301.
District courts in the Second Circuit “are split regarding the definition of
‘similarly situated.’” Epstein v. Cnty. of Suffolk, No. 14-CV-0937, 2015 WL 5038344, at
*10 (E.D.N.Y. Aug. 26, 2015). The more stringent standard requires proof that no
rational person could regard the plaintiff and comparator as different enough to justify
differential treatment “on the basis of a legitimate government policy,” and that there is
no possibility that the defendant acted “on the basis of a mistake.” Id. (quotations
omitted). The less stringent standard requires proof “that plaintiff and comparators
were similarly situated in all material respects,” or that a reasonable person would find
them “roughly equivalent.” Id. (collecting cases).
Even under the less stringent standard, Plaintiff has not proffered evidence of
similarly situated individuals. Because the incident began when Wright told Plaintiff to
leave the front passenger area, Wright’s actions cannot be separated from the fact that
Plaintiff was standing near him. Thus, Plaintiff was similarly situated to passengers
standing in the front passenger area. She has not identified those passengers, if any;
therefore, her selective treatment theory fails.
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3.4 Fourth Amendment Claim
Plaintiff argues that her Fourth Amendment right against unreasonable seizures
was violated when she “was removed by Defendant Wright through his employment of
police power through communication with the police officers.” Pl. Br. at 18.
This claim is rejected because undisputed evidence shows that there was no
Fourth Amendment seizure. In the Second Circuit, “a police order to leave an area,
without more, does not effect a seizure of the person so ordered.” Salmon v. Blesser, 802
F.3d 249 (2d Cir. 2015). As the Court of Appeals recently explained:
Police officers frequently order persons to leave public areas: crime scenes,
accident sites, dangerous construction venues, anticipated flood or fire
paths, parade routes, areas of public disorder, etc. A person may feel obliged
to obey such an order. Indeed, police may take a person by the elbow or
employ comparable guiding force short of actual restraint to ensure
obedience with a departure order. Our precedent does not view such police
conduct, without more, as a seizure under the Fourth Amendment as long
as the person is otherwise free to go where he wishes. That is the crux of
Sheppard v. Beerman, which concluded that a person who is ordered to
leave a judge’s chambers and then escorted out of the courthouse has not
been seized because the person remains free to go anywhere else that he
wishes.
Id. (citing Sheppard v. Beerman, 18 F.3d 147, 153 (2d. Cir. 1994)); see also Richardson v.
Merritt, No. 12-CV-5753, 2014 WL 2566904, at *5 n.2 (E.D.N.Y. June 6, 2014).
Although Plaintiff was ejected from the bus, she was “free to go anywhere else,”
Sheppard, 18 F.3d at 153, and Defendants did not restrain her. Therefore, there was no
seizure. See id.; Salmon, 2015 WL 5254851, at *1. Accordingly, Defendants are entitled
to summary judgment on the Fourth Amendment claim.
3.5 Procedural Due Process Claim
To assess Plaintiff’s claim that Defendants violated her procedural due process
rights, initially the Court must determine whether Plaintiff has a property or liberty

17

interest that is protected by the Constitution. “A property right will not be recognized as
cognizable under the due process doctrine if the person claiming the right has a mere
abstract need or desire for, or unilateral expectation of, the claimed right. Rather, the
person claiming the right must have a ‘legitimate claim of entitlement.’” DLC Mgmt.
Corp. v. Town of Hyde Park, 163 F.3d 124, 130 (2d Cir. 1998) (quoting Bd. of Regents v.
Roth, 408 U.S. 564, 577 (1972)). A claim of entitlement is defined by reference to
“existing rules or understandings that stem from an independent source such as state
law.” Bd. of Regents, 408 U.S. at 577. If Plaintiff has a property or liberty interest, the
Court must determine whether the defendant deprived the plaintiff of that interest
without due process. See Bryant v. N.Y. State Educ. Dep’t, 692 F.3d 202, 218 (2d Cir.
2012).
Plaintiff’s procedural due process claim is largely duplicative of other claims;
Plaintiff argues that she was deprived of Fourth Amendment rights and “of her liberty
by being forcibly removed from the MTA Bus by Defendant Wright for expressing her
First Amendment rights” and based on “discriminat[ion].” Pl. Br. at 15.
Plaintiff asserts two additional interests. First, Plaintiff asserts that passengers
have a right to speak with an MTA supervisor before being ejected from a bus. Plaintiff
does not, however, identify the source of this purported right. Pl. Br. at 15.
Second, Plaintiff asserts an interest in an accurate record of the incident and
argues that she was deprived of that interest when Wright submitted an incomplete
report to the MTA, allegedly in violation of MTA procedures. Id. at 15, 17. But Plaintiff
does not argue that those procedures (in the MTA’s Student Bus Operator Training
Program Manual) create a property interest for passengers or anyone else. See generally
Sealed v. Sealed, 332 F.3d 51, 57 (2d Cir. 2003) (citing Olim v. Wakinekona, 461 U.S.
18

238, 250–51 (1983); Hewitt v. Helms, 459 U.S. 460, 471 (1983)) (noting that
“procedures, standing alone, create no independent substantive entitlements, whose
deprivation might trigger application of the Due Process Clause”).
Because Plaintiff has not identified a property interest, Defendants are entitled to
summary judgment on the procedural due process claim.
3.6 Substantive Due Process Claim
Plaintiff’s substantive due process claim is based on the theory that Plaintiff was
ejected from Wright’s bus in retaliation for her exercise of religion and speech, and
Wright’s “purposeful[] failure to follow” MTA “rules and regulations.” Pl. Br. at 16–17.
This claim is duplicative of Plaintiff’s retaliation and equal protection claims and
therefore dismissed. See Albright v. Oliver, 510 U.S. 266 (1994); Costello v. Town of
Huntington, No. 14-CV-2061, 2015 WL 1396448, at *11 (E.D.N.Y. Mar. 25, 2015).
4

Claims against the MTA

The fact that Wright may be subject to liability under Section 1983 does not
necessarily mean that the MTA is also subject to liability. A public body can be held
liable under Section 1983 only if it “itself ‘subjects’ a person to a deprivation of rights or
‘causes’ a person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 563 U.S.
51, 131 S.Ct. 1350, 1359 (2011); see Monell v. Dep't of Social Services, 436 U.S. 658, 694
(1978); Jones v. Town of East Haven, 691 F.3d 72, 80 (2d Cir. 2012). “[L]ocal
governments are responsible only for their own legal acts.” Connick, 131 S.Ct. 1350, 1359
(quotation omitted). “They are not vicariously liable under § 1983 for their employees’
actions.” Id. Thus, to hold the MTA liable, Plaintiff “must prove that ‘action pursuant to
official municipal policy’ caused [her] injury.” Id. (quoting Monell, 436 U.S. at 691).

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Plaintiff asserts a failure-to-train theory of municipal liability. A public agency’s
failure to train its employees about their “duty to avoid violating citizens’ rights may rise
to the level of an official government policy for purposes of § 1983.” Id. “[A]t the
summary judgment stage, plaintiffs must ‘identify a specific deficiency in the . . .
training program and establish that that deficiency is closely related to [and actually
caused] the ultimate injury.’” Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir.
2007) (quoting Green v. City of New York, 465 F.3d 65, 81 (2d Cir. 2006)); see also Bd.
of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 404 (1997); Cash v. Cnty. of
Erie, 654 F.3d 324, 342 (2d Cir. 2011). Additionally, plaintiffs must show that the
municipality’s failure amounts to “deliberate indifference” to the rights that were
violated. Connick, 131 S.Ct. at 1359. This requires “proof that a municipal actor
disregarded a known or obvious consequence of his action.” Id. at 1360.
Plaintiff’s failure-to-train theory cannot survive because Plaintiff has not
“identif[ied] a specific deficiency in the [MTA’s] training program” or advanced a
“theory as to how a training deficiency caused” the constitutional violation. Amnesty
Am. v. Town of W. Hartford, 361 F.3d 113, 129 (2d Cir. 2004) (citing City of Canton,
Ohio v. Harris, 489 U.S. 378, 391 (1989)).14 Without that evidence, “[i]t is impossible to
prevail on a claim that the . . . training program was inadequate” Id. at 130; see also
Farrow v. City of Syracuse, No. 5:12-CV-1401, 2014 WL 1311903, at *8 (N.D.N.Y. Mar.
31, 2014) (“Plaintiff has not adduced direct evidence of the City’s training policies in
discovery and, therefore, his claim cannot survive summary judgment.”).

Plaintiff’s failure-to-train theory is based entirely on prior incidents of discrimination
involving a different bus operator, the New York City Transit Authority (NYCTA), and
the fact that after the May 26, 2012 incident, the MTA did not discipline Wright or
subject him to additional training. See Pl. Br. at 4–6.
14

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Because there is no basis for municipal liability, the MTA is entitled to summary
judgment on all claims.
5

Claims against the City Defendants

Although Plaintiff has not opposed the City Defendants’ motion for summary
judgment, the Court has examined their submission and determined that they have met
their burden of demonstrating that no material issue of fact remains for trial.
The First and Fourteen Amendment claims that survive against Wright do not
state a claim against Martin because a defendant’s personal involvement in alleged
constitutional deprivations is a prerequisite to liability under Section 1983. See Bastuk
v. Cnty. of Monroe, No. 13-CV-4784, 2015 WL 5805655, at *2 (2d Cir. Oct. 6, 2015);
Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 122 (2d Cir. 2004).
Martin was not involved in ordering Plaintiff to leave the front passenger area, nor was
she ever motivated by an improper purpose. Martin simply responded to a 911 call and
learned that Plaintiff was involved in two disputes, including a physical altercation with
other passengers, and that Wright did not feel safe continuing to drive with her.
Although Plaintiff told Martin that she was the victim of discrimination, a police officer
in this situation is not required to investigate that claim or to force Wright to continue
driving. It is clear that Martin was motivated by her responsibility to maintain order, not
by Plaintiff’s religion. Accordingly, there is no claim against Martin; and, even if there
were, she would be protected by qualified immunity because her actions were objectively
reasonable. See generally Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007).
Because there was no underlying constitutional violation, the City is not liable
under Section 1983. See Mendoza v. Cnty. of Nassau, No. 11-CV-2487, 2012 WL
4490539, at *7 (E.D.N.Y. Sept. 27, 2012) (citing Segal v. City of New York, 459 F.3d 207,
21

219 (2d Cir. 2006)) (“When there is no underlying constitutional violation, there can be
no municipal liability under Monell.”).
Therefore, the City Defendants are entitled to summary judgment on all claims.
CONCLUSION
For the foregoing reasons, the City Defendants’ motion for summary judgment is
GRANTED. The MTA Defendants’ motion for summary judgment is GRANTED in part
and DENIED in part.
SO ORDERED.

Dated:

Brooklyn, New York
November 6, 2015
/s/
I. Leo Glasser
Senior United States District Judge

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