Gibbs v. Metropolitan Transportation Authority et al

Filing 33

MEMORANDUM & ORDER granting 17 Motion for Summary Judgment. For the reasons set forth herein, the Complaint is dismissed with prejudice in its entirety as against the MTA, and with prejudice as against Robert Musso and the LIRR except as to plaint iff's claims of age discrimination under the New York State Human Rights Law and age and racial discrimination under the New York City Human Rights Law, which are dismissed without prejudice. Ordered by Judge I. Leo Glasser on 11/12/2014. (Carey, Charles)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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TERRELL GIBBS,
Plaintiff,
MEMORANDUM & ORDER
- against 13-CV-1583 (ILG) (RER)

METROPOLITAN TRANSPORTATION
AUTHORITY, MTA-LONG ISLAND
RAILROAD and ROBERT MUSSO,
Defendants.
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GLASSER, Senior United States District Judge:

In this action, plaintiff Terrell Gibbs alleges that his former employer, the Long
Island Railroad (“LIRR”), Robert Musso, one of plaintiff’s supervisors at the LIRR, and
the Metropolitan Transportation Authority (“MTA”) (together, “defendants”) all
discriminated against him on account of his race and age when the LIRR fired him from
his probationary job as a Car Appearance Maintainer (“CAM”). That termination,
claims plaintiff, violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq.; the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq.; 42
U.S.C. §§ 1981 and 1983; the New York State Human Rights Law (“NYSHRL”), N.Y.
Exec. Law § 290 et seq.; and the New York City Human Rights Law (“NYCHRL”), N.Y.C.
Admin. Code § 8-107. Defendants now move for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure. For the reasons that follow, that motion is
GRANTED.

1

BACKGROUND
Except where otherwise noted, the following facts are undisputed.1 Plaintiff is an
African-American male who was born in 1989. Defs.’ Ex. A, Dkt. No. 19-1 (hereinafter
“Pl. Dep.”), at 7:5-8. On November 16, 2011, the LIRR hired plaintiff as a CAM. Id. at
19:22–20:7. A CAM’s duties include the proper disposal of garbage from all train cars
and all aspects of cleaning car interiors, such as sweeping and mopping. Id. at 20:16-17.
CAMs work in the LIRR’s Maintenance and Equipment (“M/E”) Department, and the
LIRR has a written code of conduct for how M/E employees must behave. Id. at 33:10–
34:8; Defs.’ Ex. F, Dkt. No. 19-6. Failure to follow that code of conduct may result in an
M/E employee’s termination. Defs.’ Ex. C, Dkt. No. 19-3 (hereinafter “PAL Hr’g Tr.”), at
32:5-14; Defs.’ Ex. F, Dkt. No. 19-6 (hereinafter “Micheletti Dep.”), at 35:6-12.
Pursuant to a collective bargaining agreement between the LIRR and the United
Transportation Union, newly-hired CAMs are subject to a one-year probationary period
during which they are considered at-will employees-in-training. See generally Defs.’ Ex.
E, Dkt. No. 19-5. Plaintiff’s first assignment as a probationary CAM began on or about
November 23, 2011, when he was assigned to a night shift on a work gang at the LIRR’s
West Side Yard for commuter trains. Pl. Dep. at 42:10-20; Micheletti Dep. at 20:19–
21:12. At the time, defendant Musso, a white, 52-year-old gang foreman at that yard,
was in charge of supervising between 20 and 30 CAMs there, including plaintiff and
other probationary CAMs. Defs.’ Ex. B, Dkt. No. 19-2 (hereinafter “Musso Dep.”) at 5:7-

Plaintiff’s denials of knowledge or information sufficient to form a belief as to the truth or falsity of a
number of defendants’ assertions in their Local Civil Rule 56.1 Statement are “not sufficient to create an
issue of fact for Rule 56 purposes” because Local Civil Rule 56.1(c) states that each paragraph in a party’s
statement made pursuant to that rule “will be deemed to be admitted unless specifically controverted . . .”
(emphasis added). See Alfano v. NGHT, Inc., 623 F. Supp. 2d 355, 363 (E.D.N.Y. 2009).
1

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14, 24:2-21. The CAMs were of several different races, including other AfricanAmericans besides plaintiff. Pl. Dep. at 43:21–45:13.
On January 23, 2012, Musso assigned plaintiff to mop the floors of a train’s cars.
Defs.’ Ex. K, Dkt. No. 19-11, at 66. When Musso went to inspect the train, he found
plaintiff wearing headphones (it is disputed as to whether they were around his neck or
on his ears). Id.; Pl. Dep. at 35:23-24. Rule 121 of the M/E Code of Conduct prohibits
the use of any “electronic music playing equipment” or headphones while “performing
services.” Defs.’ Ex. F at 3. At a hearing conducted pursuant to New York Public
Authorities Law § 1276(4) (the “PAL Hearing”) regarding the allegations underlying this
action, plaintiff testified that his headphones were playing music at the time Musso saw
them, but plaintiff later claimed at his deposition in this action that his headphones
were not emitting any sound. Compare PAL Hr’g Tr. at 33:5-20 with Pl. Dep. at 35:19–
36:5. Musso told plaintiff that he could not wear the headphones, and plaintiff admitted
that his use of the headphones violated the M/E Code of Conduct. Pl. Dep. at 36:11-16;
PAL Hr’g Tr. at 34:9-18.
Four days later, on January 27, 2012, Musso assigned plaintiff to clean and empty
the garbage receptacles on the odd-numbered cars of a train. Defs.’ Ex. K at 66. When
Musso inspected plaintiff’s work, he found garbage on at least one seat of a train car
plaintiff was supposed to clean. Id.; Pl. Dep. at 75:6-11. At the end of plaintiff’s shift on
that day, Musso issued a verbal warning to plaintiff about his conduct in the presence of
another gang foreman, Joshua Rodriquez, and a representative from plaintiff’s union.
Defs.’ Ex. K at 66; Pl. Dep. at 75:6–76:8. Although plaintiff spoke to the union
representative alone following the warning, he did not tell the representative that he
believed Musso was behaving in a discriminatory fashion. Pl. Dep. at 76:13-24. At some
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point between November of 2011 and February of 2012, plaintiff was again reprimanded
by Musso for failing to clean a stain off the back of a seat in a train car. PAL Hr’g Tr. at
43:11–44:22. Plaintiff knew that it was his responsibility to clean the stain in question,
but he did not clean it until after Musso told him he had missed it. Id. at 45:8-25.
During the probationary period, CAMs’ supervisors submit Probationary
Evaluation Forms (“evaluations”) for each CAM on a quarterly basis to management
personnel. The evaluation ranks probationary employees on a scale of “1” to “4,” with
“1” indicating an unacceptable level of performance and “4” a performance that
exceeded expectations. See Defs.’ Ex. E at 3-4. Management then reviews the
evaluations and all other relevant material (such as employee time sheets) to determine,
with the concurrence of the human resources department, whether or not the CAMs’
employment should continue. Id. at 4; Micheletti Dep. at 15:20–16:12. At all times
relevant to this litigation, the person responsible for reviewing probationary employees’
evaluations in the M/E Department was Antonia Micheletti, the Manager of Equipment,
Payroll, Auditing and Control. Micheletti Dep. at 15:20–16:21. Musso completed his
quarterly evaluation of plaintiff’s work performance on February 25, 2012 and
forwarded it to Micheletti for review with supporting documentation attached. Defs’ Ex.
K. Musso rated plaintiff a “1” on his ability to exhibit the required level of job knowledge
and/or skills to perform his job, and a “2” (below minimum expectations) in eight other
categories. Id. The supporting documentation Musso attached to the evaluation
referenced both plaintiff’s use of headphones on January 23, 2012 and his failure to
clean a train car on January 27, 2012 as grounds for the ratings plaintiff received. Id. at
66.

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On March 2, 2012, Micheletti indicated on the evaluation that plaintiff was not
meeting departmental expectations because of his improper work performance and
violation of the M/E Code of Conduct. Id. at 65. By that time, plaintiff had been
transferred to a day shift, and on March 5, 2012, Micheletti sent an email to plaintiff’s
new gang foremen, Linwood Booker and Benjamin Torregosa, asking whether plaintiff’s
performance had improved. Pl.’s Ex. 3, Dkt. No. 28-3. Booker told Micheletti that
plaintiff “ha[d] been quite consistent in performing his duties as a CAM” since being
moved to the day shift. Id. On March 6, 2012, Micheletti wrote on a printed copy of
Booker’s email that, based on Booker’s statement, plaintiff would be “evaluated again,
regardless of [the] timing of [the] evaluation process, when he moves to another
location.” Id.
In a memorandum dated April 16, 2012 that was placed in plaintiff’s personnel
file, Micheletti indicated that she had spoken to both Musso and Rodiquez, and that
“there appear[ed] to be no change with [plaintiff’s] performance” after Musso’s
evaluation. Defs.’ Ex. L, Dkt. No. 19-12. Citing this continued poor performance and
plaintiff’s violation of M/E Code of Conduct Rule 121, Micheletti recommended to the
LIRR’s human resources department that plaintiff be terminated.2 Id. At the time
Micheletti made that recommendation, she had not met plaintiff and was unaware of his
race. Micheletti Dep. at 76:8-11. The human resources department accepted
Micheletti’s recommendation, and plaintiff was fired on April 19, 2012. Defs.’ Ex. N,
Dkt. No. 19-14. Plaintiff was the only probationary CAM on Musso’s work gang between

Micheletti noted at her deposition in this action that plaintiff’s late arrival to work on two separate
occasions contributed to her decision to terminate him, but this reason is not referenced specifically in the
April 16, 2012 memorandum. Compare Micheletti Dep. at 58:24–59:8 with Defs.’ Ex. L.

2

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November 2011 and January 2012 who was fired after one quarterly evaluation. Musso
Dep. at 24:25–25:9.
Plaintiff maintains that Musso’s animus towards his race and age was the true
cause of his termination. He claims that Musso singled him out for ridicule when in the
presence of other co-workers, and that Musso would repeatedly summon him on the
yard’s radio for no proper reason. Pl. Dep. at 83:4-9. According to plaintiff, Musso
made statements to him such as “I don’t know why you’re here, but I am going to go
over my boss to get you out of here” and “You’re not a man[;] start acting like a man.”
Id. at 48:17-23. Plaintiff never personally witnessed Musso treat African-American
employees differently than employees of other races, but heard from other co-workers
that Musso did so. Id. at 56:19–57:21; 65:5-11. Plaintiff also claims that Musso ignored
or played down other violations of the M/E Code of Conduct when other CAMs
committed them, but treated plaintiff’s violation far more seriously. Id. at 40:23–42:6.
Musso denied these allegations at his deposition. See generally Musso Dep.
Plaintiff commenced this action on March 26, 2013. Dkt. No. 1. Defendants
answered on June 10, 2013. Dkt. No. 10. Discovery closed on May 30, 2014, and
defendants filed their summary judgment motion on July 11, 2014. Minute Entry of
Apr. 24, 2014; Dkt No. 17. Plaintiff submitted opposition papers on October 6, 2014,
and defendants replied on October 27, 2014. Dkt. Nos. 27-32.
LEGAL STANDARD
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 non[-]moving party. . . . A fact is material
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if it might affect the outcome of the suit under the governing law.” Fincher v.
Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010) (quotation marks
and citation omitted).
The party moving for summary judgment bears the burden of establishing the
absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). In deciding the motion, the Court must “construe the facts in the light most
favorable to the non-moving party and must resolve all ambiguities and draw all
reasonable inferences against the movant.” Brod v. Omya, Inc., 653 F.3d 156, 164 (2d
Cir. 2011) (citation omitted). However, to defeat the motion, the non-moving party
“must do more than simply show that there is some metaphysical doubt as to the
material facts,” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87
(1986)), and cannot “rely on conclusory allegations or unsubstantiated speculation.”
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quotation marks and citation
omitted).
DISCUSSION
I.

Title VII

Title VII prohibits an employer from taking adverse employment action against
an employee because of his “race, color, religion, sex, or national origin.” 42 U.S.C. §
2000e-2(a)(1). Courts analyze Title VII claims using the three-part framework set forth
by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04
(1973). Under that framework, the employee bears the initial burden of proving a prima
facie case of discrimination by a preponderance of the evidence. The burden then shifts
to the employer to proffer a legitimate non-discriminatory reason for its actions. If it
can do so, the burden shifts back to the employee, who must establish that,
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notwithstanding the employer’s explanation, an illegal discriminatory reason played a
motivating role in the adverse employment action. E.g., Kirkland v. Cablevision Sys.,
760 F.3d 223, 225 (2d Cir. 2014) (per curiam); Bickerstaff v. Vassar Coll., 196 F.3d 435,
446-47 (2d Cir. 1999).3
Plaintiff does not dispute that defendants have articulated a legitimate nondiscriminatory reason for firing him: his poor work performance. See Pl. Opp. Mem. at
15. Therefore, the only remaining issues are whether he has stated a prima facie
discrimination case and whether discrimination played a motivating role in the LIRR’s
decision to terminate him notwithstanding its asserted rationale.
A. Prima Facie Discrimination
“The burden of establishing a prima facie case of alleged disparate treatment ‘is
not onerous.’” Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008) (quoting Tex.
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Plaintiff can satisfy it by
showing that (1) he belongs to a protected class, (2) he was qualified for the position that
he held, (3) he suffered an adverse employment action, and (4) the adverse employment
action occurred under circumstances giving rise to an inference of discriminatory intent.
Id. (citing Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004)). Defendants contend
that plaintiff was neither qualified for the position that he held nor subject to
termination under circumstances that would permit an inference of discrimination.

The third part of the McDonnell Douglas framework is often described as requiring the employee to
demonstrate that the employer’s proffered reason for the adverse employment action was “pretextual,”
but that term seems to imply (and defendants indeed argue) that plaintiff must demonstrate that the
explanation for why he was terminated is false. He need not do so: “though a discrimination plaintiff may
not succeed by proving only that a proffered explanation is false but must prove that discrimination
motivated the adverse action, the plaintiff is entitled to succeed by proving discriminatory motivation
without proving that a proffered explanation is false.” Bickerstaff, 196 F.3d at 447 (quoting Renz v. Grey
Adver., 135 F.3d 217, 222 n.3 (2d Cir. 1997)).
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1. Job Qualification
An employee who alleges that his termination was due to discrimination “need
not do much to establish his qualification for the position he holds. . . .” Donnelly v.
Greenburgh Cent. Sch. Dist. No. 7, 691 F.3d 134, 147 (2d Cir. 2012). It is enough to
show “that he possesses the basic skills necessary for performance of the job.” Id.
(quoting Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001)).
Where, as here, “the employer has already hired the employee into the job in question,
the inference of minimal qualification is . . . easier to draw . . . because, by hiring the
employee, the employer itself has already expressed a belief that [he] is minimally
qualified.” Gregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001). Although the LIRR
points to Musso’s evaluation of plaintiff as evidence that he was not qualified for the
position he held, Booker’s email to Micheletti describing plaintiff’s competence on the
day shift indicates that plaintiff possessed the basic skills of a CAM. See Pl.’s Ex. 3.
Thus, plaintiff has established this element of his prima facie case, and defendants are
not entitled to summary judgment on the grounds that plaintiff was not qualified for the
position he held.
2. Circumstances Giving Rise to an Inference of Discriminatory
Intent
An inference of discriminatory intent may be drawn if an employee shows direct
evidence of such intent or that he was subjected to disparate treatment compared to
persons who were not members of his protected class but similarly situated in all other
material respects to himself. See Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 91
(2d Cir. 1996). Because direct evidence of discriminatory intent will “only rarely be
available, . . . ‘affidavits and depositions must be carefully scrutinized for circumstantial

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proof which, if believed, would show discrimination.’” Holcolmb, 521 F.3d at 137
(quoting Gallo v. Prudential Residential Servs., LP, 22 F.3d 1219, 1224 (2d Cir. 1994)).
Plaintiff has shown no direct evidence of discriminatory intent. He concedes that
he never heard Musso or any other LIRR employee use racial epithets, say anything
demeaning about African-Americans, or even speak differently about members of other
races. See Pl. Dep. at 47:15–48:7, 57:3-21; PAL Hr’g Tr. at 38:5-20. Micheletti did not
know plaintiff’s race at the time she recommended he be terminated. Micheletti Dep. at
76:8-11. Although plaintiff purportedly heard other employees say that Musso treated
African-Americans differently than Caucasians, such secondhand statements are
inadmissible hearsay to the extent that plaintiff attempts to use them for the truth of
their assertions. And even though plaintiff felt that Musso’s statements such as “start
acting like a man” might have been made with animus towards his race, the statements
are not racially motivated on their faces, and plaintiff presents no evidence beyond his
own feelings that they contained a racial subtext. In short, plaintiff has shown nothing
more than his own subjective belief that he was discriminated against, which is not
enough to make out a prima facie discrimination case under Title VII. See, e.g., Brodt v.
City of New York, 4 F. Supp. 3d 562, 568 (S.D.N.Y. 2014) (citing, inter alia, Bickerstaff,
196 F.3d at 456); Simmons v. AT&T Corp., No. 96 Civ. 2844, 1998 WL 751659, at *9
(S.D.N.Y. Oct. 28, 1998), aff’d, 182 F.3d 901 (table), 1999 WL 464983 (2d Cir. June 21,
1999).
Similarly, plaintiff has not shown any circumstantial proof of disparate
treatment. Plaintiff argues that he was punished more severely for his transgressions
than other employees, but he submits no admissible evidence in support of this claim.
Although he claims that there were “less than three” other instances when Musso
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observed employees wearing headphones without disciplining them, he does not recall
the races of those employees, and indeed provides no information about those incidents
beyond his own limited ipse dixit. See Pl. Dep. at 41:2-14.4 None of the other AfricanAmerican probationary CAMs working alongside plaintiff were fired when he was, even
though, according to plaintiff, their supervisors witnessed them violating the M/E Code
of Conduct. See id. at 38:15–40:10. Thus, “the most [the evidence] establishes, even in
the light most favorable to the plaintiff, is that [he] was treated differently from all other
employees, both white and black.” See Thornton v. Simpson Thatcher & Bartlett, No. 83
Civ. 8409, 1986 WL 6012, at *4 (S.D.N.Y. May 21, 1986), aff’d mem., 833 F.2d 1003 (2d
Cir. 1986). Accordingly, he has not made out a prima facie case under Title VII, and
summary judgment is granted to defendants on this issue.
B. Discrimination as a Motivating Role
Even assuming arguendo that plaintiff has stated a prima facie discrimination
claim, he cannot defeat defendants’ motion for summary judgment because he has not
shown that a reasonable finder of fact could conclude that racial discrimination played a
motivating role in his dismissal notwithstanding the LIRR’s asserted legitimate reason
for firing him. Plaintiff points to Musso’s alleged statements that he would “go over my
boss to get you out of here” and Micheletti’s unexplained reversal of her earlier decision
to re-evaluate plaintiff before recommending he be terminated as evidence that his
firing was pretextual. But as previously noted, Musso’s statements do not implicate

Plaintiff’s attempt to use his deposition to backtrack from his admission at the PAL Hearing that he
violated M/E Code of Conduct Rule 121 by using headphones while working does not create a genuine
issue of material fact. In “the absence of any corroborating evidence in the record and . . . [the]
inconsistencies and contradictions within the plaintiff’s deposition testimony,” the Court cannot credit
plaintiff’s belated repudiation of his earlier sworn statement. See Jeffreys v. City of New York, 426 F.3d
549, 554 (2d Cir. 2005) (citing, inter alia, Shabazz v. Pico, 994 F. Supp. 460, 468-71 (S.D.N.Y. 1998)
(Sotomayor, D.J.))
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plaintiff’s race, and Micheletti was unaware of it when she made the recommendation
that the LIRR fire plaintiff. The statements made by unknown LIRR employees about
Musso’s animus towards African-Americans, which plaintiff recounted at his deposition
and now relies on heavily in attempting to avoid summary judgment, are inadmissible
hearsay. He therefore fails to provide any evidence that defendants’ stated rationale,
though potentially pretextual, was a pretext for firing him because of his race, and his
case cannot proceed. See, e.g., Fisher v. Vassar Coll., 114 F.3d 1332, 1339 (2d Cir. 1997)
(en banc); Cook v. Pan Am. World Airways, Inc., 647 F. Supp. 816, 824 (S.D.N.Y. 1986)
(“It is not enough . . . to show that the employer made an unwise business decision, or . .
. acted arbitrarily or with ill will” (quoting Gray v. New Eng. Tel. & Tel. Co., 792 F.2d
251, 255 (1st Cir. 1986)).
II.

42 U.S.C. §§ 1981 and 1983

42 U.S.C. § 1981 protects the rights of “[a]ll persons within the United States . . .
to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal
benefit of all laws and proceedings for the security of persons and property as is enjoyed
by white citizens.” 42 U.S.C. § 1983 prohibits those acting under color of state law from
depriving others of their federal rights. See Ahlers v. Rabinowitz, 684 F.3d 53, 60-61
(2d Cir. 2012) (citation omitted). Plaintiff alleges that the decision to terminate him
violated both Section 1981 and the rights that the Equal Protection Clause of the
Fourteenth Amendment affords him via Section 1983.
A. Section 1981
Section 1981 applies only to instances of racial discrimination, and plaintiff’s age
discrimination claim under the statute fails accordingly. See Lofland v. Meyers, 442 F.
Supp. 955, 956 (S.D.N.Y. 1977). As for his race-based claims, “[t]he substantive
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standards applicable to claims of employment discrimination under Title VII . . . are also
generally applicable to claims of employment discrimination brought under Section
1981. . . .” Vivenzio v. City of Syracuse, 611 F.3d 98, 106 (2d Cir. 2010). In other words,
an employee’s claims arising out of the same employer conduct “must stand and fall
together” regardless of whether they are brought pursuant to Title VII or Section 1981.
See Wojcik v. Brandiss, 973 F. Supp. 2d 195, 216 (E.D.N.Y. 2013) (quoting, inter alia,
Feingold, 366 F.3d at 159). Since plaintiff cannot prevail on his Title VII claims,
summary judgment is granted to defendants on his Section 1981 claims as well.
B. Section 1983
Plaintiff’s equal protection claim does not allege that he is a member of a specific
class that suffered unequal treatment at defendants’ hands, but rather that defendants’
actions “singled [him] out as separate, apart, and unequal to others similarly situated.”
Compl. ¶ 73. In other words, plaintiff deems himself a “class of one.” See Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam) (recognizing the general
availability of the class-of-one cause of action). However, the Supreme Court has
expressly forbidden employees from lodging class-of-one claims against public
employers, because “treating like individuals differently is an accepted consequence of
the discretion granted” to an employer, even if that employer is the state. See Engquist
v. Or. Dep’t of Agric., 553 U.S. 591, 603 (2008). Since the LIRR is a public employer,
see Jagmohan v. LIRR, No. 12-CV-3146, 2014 WL 4417745, at *7 (E.D.N.Y. Sept. 8,
2014), plaintiff’s Section 1983 claim cannot proceed, and is therefore dismissed.
III.

The ADEA

Defendants note, and plaintiffs do not dispute, that the ADEA’s protections
against age discrimination only extend to employees who are at least 40 years old. See
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Defs.’ Mem. at 22 (citing 29 U.S.C. § 631(a)). Plaintiff was 23 years old when he was
terminated, and his ADEA claims fail accordingly.
IV.

Involvement of the MTA

Under New York law, the LIRR is a subsidiary of the MTA, and its employees are
not employees of the MTA itself. See N.Y. Pub. Auth. Law § 1266(5). Since the MTA
cannot be said to be plaintiff’s employer or to have taken any adverse employment
action against him, summary judgment is granted to the MTA on all causes of action
listed in the Complaint.
V.

State and Local Law

A district court may “decline to exercise supplemental jurisdiction” over state and
local law claims if it has “dismissed all claims over which it has original jurisdiction.” 28
U.S.C. § 1367(c)(3). Where, as here, all federal claims have been dismissed before trial,
the usual course of action is for the Court to decline to exercise supplemental
jurisdiction. See Pitchell v. Callan, 13 F.3d 545, 549 (2d Cir. 1994). In this case,
however, the interests of judicial economy and comity favor immediate resolution of one
of plaintiff’s state law claims. “[I]t is well-established that the substantive standards for
liability under the NYSHRL and Title VII are coextensive,” and plaintiff’s state law claim
for racial discrimination under the NYSHRL is therefore dismissed with prejudice for
the same reasons as his Title VII claim. See Vuona v. Merrill Lynch & Co., 919 F. Supp.
2d 359, 393 (S.D.N.Y. 2013). His remaining claims of age discrimination under the
NYSHRL and age and racial discrimination under the NYCHRL, however, are evaluated
under different standards than his federal claims, and state courts are best equipped to
resolve them. See, e.g., id. at 393-94; Thomas v. City of New York, 953 F. Supp. 2d 444,
462 (E.D.N.Y. 2013). The Court therefore dismisses those claims without prejudice.
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CONCLUSION
For the foregoing reasons, defendants’ motion for summary judgment is
GRANTED. The Complaint is dismissed with prejudice in its entirety as against the
MTA, and with prejudice as against Musso and the LIRR except as to plaintiff’s claims of
age discrimination under the NYSHRL and age and racial discrimination under the
NYCHRL, which are dismissed without prejudice. The Clerk of Court is directed to
enter judgment in favor of defendants, and to close this case.
SO ORDERED.
Dated:

Brooklyn, New York
November 12, 2014
/s/
I. Leo Glasser
Senior United States District Judge

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