Mitchell et al v. Metropolitan Transit Authority Capital Construction Corp. et al
Filing
53
OPINION AND ORDER re: 38 MOTION for Summary Judgment . filed by Metropolitan Transit Authority Capital Construction Corp., NYC Transit Authority. For the foregoing reasons, Defendants' motion for summary judgment on Plainti ffs' federal and state claims is GRANTED, and the Court declines to exercise supplemental jurisdiction over Plaintiffs' NYCHRL claims and dismisses them without prejudice. The Clerk of Court is directed to terminate all pending motions, adjourn all remaining dates, and close this case. SO ORDERED. (Signed by Judge Katherine Polk Failla on 7/17/2018) (rro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
WINSTON MITCHELL and
:
REHEMA TRIMIEW,
:
:
Plaintiffs,
:
:
v.
:
:
METROPOLITAN TRANSIT AUTHORITY
:
CAPITAL CONSTRUCTION CORP. and NYC :
TRANSIT AUTHORITY,
:
:
Defendants. :
:
------------------------------------------------------ X
USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #: _________________
DATE FILED: July 17, 2018
______________
16 Civ. 3534 (KPF)
OPINION AND ORDER
KATHERINE POLK FAILLA, District Judge:
Plaintiffs Winston Mitchell and Rehema Trimiew are former
videographers and media producers for, respectively, the NYC Transit Authority
(“NYCTA”) and Metropolitan Transit Authority Capital Construction Corp.
(“MTACC”). In 2015, MTACC elected not to renew Trimiew’s contract, and in
2016, Mitchell resigned from the NYCTA. Plaintiffs jointly filed this litigation in
2016, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e-17, 42 U.S.C. § 1981, the New York State Human Rights Law, N.Y.
Exec. Law §§ 290-297 (“NYSHRL”), and the New York City Human Rights Law,
N.Y.C. Admin. Code §§ 8-101 to 8-131 (“NYCHRL”). Following an unsuccessful
mediation, the parties conducted discovery; Defendants now move for summary
judgment on Plaintiffs’ federal claims. For the reasons that follow, Defendants’
motion is granted.
BACKGROUND 1
A.
Factual Background
1.
Rehema Trimiew
Rehema Trimiew is an African-American woman who, in July 2012,
began working for URS, a “construction management firm” with which MTACC
had a consulting agreement. (Def. 56.1 ¶ 1; Curley Decl., Ex. 4, 7). Trimiew
was not an MTACC employee; she was at all times a contractor employed by
URS. (Def. 56.1 ¶ 4). Trimiew was placed at MTACC’s corporate
communications group, where she “film[ed] MTACC’s construction projects,
including the Second Avenue subway, the new Fulton Center transit hub, and
the recent extension of the Number 7 [s]ubway line.” (Id. at ¶ 2). In this role,
she generated video footage of these sites and would, at times, produce that
1
The facts recounted herein are drawn from the parties’ submissions in connection with
Defendants’ motion. In particular, the Court has considered Defendants’ Local
Rule 56.1 Statement (“Def 56.1” (Dkt. #44)), Plaintiffs’ responses thereto (“Pl. 56.1 Opp.”
(Dkt. #50)), and numerous deposition transcripts and declarations. References to
individual deposition transcripts and declarations will be referred to using the
conventions “[Name] Dep.” and “[Name] Decl.,” respectively. Defendants’ moving brief
will be referred to as “Def. Br.” (Dkt. #39); Plaintiff’s opposition as “Pl. Opp.” (Dkt. #48);
and Defendants’ reply brief as “Def. Reply” (Dkt. #51).
Counsel for Plaintiffs is admonished to review the Court’s Individual Rules of Practice
for Civil Cases, and in particular Rule 5, which makes plain that “[e]ach memoranda of
law must include a statement of facts, and may not simply incorporate by reference the
entirety of a party’s 56.1 Statement.” Rule 5.C.iv. The Court does not appreciate
counsel’s blatant efforts to evade page-limit requirements.
Citations to a party’s Rule 56.1 Statement incorporate by reference the documents and
testimony cited therein. Where a fact stated in either party’s Rule 56.1 Statement is
supported by evidence and denied with merely a conclusory statement by the other
party, the Court finds such facts to be true. See Local Civil Rule 56.1(c) (“Each
numbered paragraph in the statement of material facts set forth in the statement
required to be served by the moving party will be deemed to be admitted for purposes of
the motion unless specifically controverted by a correspondingly numbered paragraph
in the statement required to be served by the opposing party.”); id. at 56.1(d) (“Each
statement by the movant or opponent pursuant to Rule 56.1(a) and (b), including each
statement controverting any statement of material fact, must be followed by citation to
evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).”).
2
footage into videos for wider release, including on the Metropolitan Transit
Authority’s (“MTA”) YouTube channel. (Id. at ¶ 3). The details of Trimiew’s
position at MTACC are set forth in a Task Order that states that the “expected
duration” of the position was one year; that she would work a 40-hour workweek; and that overtime was not expected. (Curley Decl., Ex. 18). Trimiew’s
placement at MTACC was extended in December 2014 for six months until
June 2015, and again in July 2015 for three months until September 2015.
(Id.; Def. 56.1 ¶¶ 62-63). 2
When Trimiew started at MTACC, Jeannie Kwon was her manager in the
corporate communications group. (Def. 56.1 ¶ 10). Kwon testified that “from
the very beginning … [she] was getting complaints about [Trimiew],” but that
she “believed in her” and wanted to “talk to [Trimiew] about it,” in the hopes
that “with some coaching and some mentoring,” Trimiew could come to
understand the culture at MTACC. (Kwon Dep. 42:13-43:23). A 2013 annual
review reflects, in the “Manager’s Comments” section, that Trimiew “produce[d]
excellent top quality video … that ha[s] been well received by all audiences.”
(Curley Decl., Ex. 7). Areas needing improvement included planning of video
shoots, management of interns, and increased “patients and understanding”
when going through the editing process. (Id.). Kwon and Georgette Jones, a
2
Trimiew contests these facts in her Local Rule 56.1 Counterstatement (see Pl. 56.1 Opp.
¶¶ 62-63), but her denial is nonresponsive and unsupported. Moreover, documentary
evidence confirms that truth of these facts. (See Curley Decl., Ex. 18). The documents
in the record do not reflect that Trimiew’s contract was extended after the first year, but
the Court infers from Kwon’s testimony that it was, and neither side suggests otherwise.
(See Kwon Dep. 40:13-42:7 (discussing renewal of Trimiew contract prior to April
2014)).
3
human resources manager at the MTA, 3 both testified that two interns
assigned to assist Trimiew had complained about her, and Kwon stated that
this “was a major red flag” because “interns never complain.” (Kwon
Dep. 42:19-43:7). Jones added that these interns complained to her directly,
and described Trimiew “as being very difficult and condescending.” (Jones
Dep. 29:18-24, 34:11-23). In spite of these complaints, Kwon believed that
Trimiew “deliver[ed] what she was asked to do[,]” and Kwon decided to renew
Trimiew’s contract in the hope and belief that Trimiew’s “interpersonal skills
would improve and her teamwork abilities would improve[.]” (Kwon
Dep. 40:13-41:24).
Throughout her time at the MTACC, Trimiew’s primary responsibility was
to shoot footage of MTACC construction sites and produce that footage into
videos. The parties agree that Trimiew did not have unfettered discretion to
produce these videos as she saw fit; at all times during her tenure, Trimiew’s
videos were reviewed by others before they could be disseminated. (See Def.
56.1 ¶¶ 24-25; Trimiew Dep. 53:3-5 (“[Q:] [A]t some point when the footage is
finished being edited, does it have to go through [a] review process? A: Yes.”)).
Trimiew testified that, during the time when Kwon was her manager, she would
show her completed videos to Kwon and possibly to a “safety person … to make
sure there [were] no safety violations in the video” and that Trimiew would
make any suggested changes. (Trimiew Dep. 53:12-54:3). After the video had
3
The MTA is a distinct entity from MTACC and the NYCTA. Any references to “MTA” refer
to that specific parent entity, and not to any subsidiary entity.
4
been reviewed at MTACC, she would “send it over to … Joe Chan at MTA[,]”
who was “the gatekeeper for [the MTA’s] YouTube” channel, and Chan could
request changes to the video. (Id. at 54:3-16; 55:15-16).
a.
Trimiew’s Discrimination Claims
Trimiew’s interactions with Chan form the basis of her discrimination
claims. Principally, Trimiew alleges that Chan spoke to her in a
condescending, derisive, and demeaning manner in which he belittled her
work — referring to her at times as “work for hire” — and criticized her videos
to the point that Trimiew developed an “impression” that Chan had created a
review process that was unique to her. (Trimiew Dep. 71:3-20, 121:8-22).
Defendants counter that “[t]he MTA, not MTACC … manages the YouTube
channel and has final approval about what material was published on that
site[,]” and that Chan’s review process was an effort to ensure that all content
conformed to the MTA’s “house style.” (Def. 56.1 ¶¶ 24-33). 4
In this regard, Defendants explain that the MTA house style requires that
certain graphics be consistent and that videos be filmed at 24 frames per
second. (Def. 56.1 ¶¶ 26-27). Trimiew contests the fact that her role at
MTACC required her to cooperate with Chan at the MTA, and, further, disputes
both the existence of an MTA house style and Chan’s role in enforcing any such
style. (Pl. 56.1 Opp. ¶¶ 25-32). Her contestations, however, fail to raise a
4
The Court also agrees with Defendants that it is hard to discern a derisive connotation
from Chan’s use of the term “work for hire,” and that Chan’s comments were a factually
accurate reference to the status of Trimiew and/or her work under the Copyright Act.
See 17 U.S.C. § 101. (See Def. Br. 16).
5
genuine dispute of material fact. Defendants have submitted emails that
reflect Chan reminding Trimiew of the house style requirements and asking her
to abide by them. (See, e.g., Def. 56.1 ¶¶ 35-36; Curley Decl., Ex. 10
(December 9, 2013 Chan Email to Trimiew (“As I’ve advised you repeatedly, the
house style is 24 [frames per second] for MTA videos — including those from
MTACC. You shouldn’t be shooting at 30 [frames per second] at all, so please
stop doing this.”)); id. at Ex. 12 (March 27, 2013 Chan Email to Trimiew
(asking Trimiew to shoot at 24 frames per second)); id. at Ex. 11
(September 21, 2012 Chan Email to Trimiew (“For the videos [MTACC] wants to
post, we’ll work on them together to get them conformed to our house style and
through the approval process up here.”))).
During her deposition, Trimiew recounted six additional examples of
Chan’s behavior that caused her to believe she was being singled out because
of her race: First, Chan was rude to Trimiew during a phone call and
“insinuated [she] was up to something.” (Trimiew Dep. 73:14-21). Second,
Chan falsely accused Trimiew of attempting to renegotiate a contract with a
music license company after she called the company “to get information for
what it cost per song.” (Id. at 287:22-288:19). Third, Trimiew planned to
create a video for the opening of the Fulton Center and had been shooting
footage over a course of months when, abruptly, Chan removed Trimiew from
the project and assigned her to a different project. (Id. at 132:23-133:18).
Fourth, after Trimiew’s manager changed, Chan, either directly or through
Trimiew’s new manager, required Trimiew to send him all of the raw footage
6
she shot, which Trimiew believed was required of no other videographers. (Id.
at 133:20-134:4). Fifth, Chan would, at times, “take a long time to respond [to
Trimiew regarding] things that [she] was told we wanted a fast turnaround on.”
(Id. at 135:2-8). Sixth, Trimiew asked Chan to be involved in an initiative to
begin shooting videos with drones; at one point, he offered her the opportunity
to practice with a drone he had, but when Trimiew emailed Chan asking to
borrow the drone, he never responded. (Id. at 136:10-138:7; see also Def. 56.1
¶¶ 47-51).
In April 2014, Kwon was promoted and Bogdon Topielski became
Trimiew’s manager at MTACC. (Def. 56.1 ¶¶ 41-42). When Kwon informed
Topielski by email that he would be Trimiew’s manager, he echoed Kwon’s
earlier concern: “[O]ne of the first things I should do is get between [Trimiew]
and [ ] Chan and the Press Office on video production,” in order “to smooth
things over and be the face of MTACC video production with them instead of
[Trimiew] since she is not very diplomatic.” (Curley Decl., Ex. 14).
As noted previously, Trimiew recalled that at some point, Chan asked her
to provide him with periodic downloads of all her video footage. (Trimiew
Dep. 133:20-25). Topielski testified that one of his first goals as Trimiew’s
manager was to address the fact that Trimiew had not been providing those
downloads on a regular basis. (Topielski Dep. 45:5-12). Toward that end,
Topielski agreed with Chan that Trimiew and another colleague, Michael
Giancaspro, would provide footage downloads to Chan once per month to help
Chan respond to outside requests for footage. (Id. at 47:8-24; Topielski Decl.
7
¶ 16). Thereafter, Trimiew contends, Topielski changed her responsibilities “to
accommodate Mr. Chan[.]” (Pl. 56.1 Opp. ¶ 70; Soto Decl., Ex. C (April 29,
2014 Topielski Email to Kwon (“I am trying to rebuild trust and a working
relationship with [Chan] and company by delivering what he wants without
excuses and delays[.]”))). Trimiew similarly testified at her deposition that after
Topielski became her manager, Chan “play[ed] a bigger role in the review
process.” (Trimiew Dep. 54:17-56:5).
Shortly after Topielski began managing Trimiew, she and Giancaspro
entered a Second Avenue subway construction site unaccompanied and took
photos. (Curley Decl., Ex. 16 (June 12, 2014 Trimiew Email to Kiacolai)). A
construction manager on the site reported this to members of the MTACC
corporate communications group and told them that Trimiew’s actions were
“totally unacceptable” and “a serious breach of protocol.” (Id. (June 12, 2014
Hall Email to Alcala)). The construction manager added that “appropriate
disciplinary action should be taken on those who entered the work site without
authorization.” (Id.). Topielski was informed, and he “asked [Trimiew] to
adhere to the existing safety protocols when scheduling shoots[.]” (Topielski
Decl. ¶ 15).
b.
Trimiew’s Retaliation Claims
On June 23, 2014, Trimiew filed an internal complaint claiming that
Chan had discriminated against her because of her race. (Def. 56.1 ¶ 44;
Curley Decl., Ex. 15). Before filing this complaint, Trimiew discussed her
allegations with co-Plaintiff Winston Mitchell, who similarly believed that Chan
8
was treating him differently because of his race. (Trimiew Dep. 189:23190:18). Trimiew believes that her conversations with Mitchell generated
rumors around the office and that it became known that they were planning to
file a complaint. (Id. at 194:5-17). Trimiew claims, however, that Kwon began
to treat her differently even before she filed her discrimination complaint. (Id.
at 192:12-19).
Trimiew alleges that in retaliation for filing that complaint, Kwon
assigned Topielski to be Trimiew’s manager and imposed a stricter schedule in
which Trimiew no longer had “free range” over her hours. (Trimiew
Dep. 195:18-196:18). Trimiew further alleges that Topielski retaliated against
her by forbidding her from working with interns, scrutinizing her workload,
and micromanaging her schedule. (Def. 56.1 ¶ 100; Trimiew Dep. 299:16300:16). For example, Topielski continued to ask Trimiew and Giancaspro to
transfer hard drives of Trimiew’s video footage in June and July of 2014, and
admonished them for not sending the hard drives to Chan in a timely fashion.
(Curley Decl., Ex. 17). 5 Trimiew further alleges that Topielski: (i) demanded
that she tell him her whereabouts at all times and produce “daily reports” of
her work; (ii) imposed a rigid eight-hour-per-day schedule on her and forbade
her from having a more flexible schedule; (iii) questioned her timesheet entries;
5
In her deposition, Trimiew was asked whether any other employees, including
Giancaspro, were required to send Chan downloads of raw footage. (Trimiew
Dep. 154:8-155:13). She stated that she could not speak to what other employees were
required to do, and added that this requirement was not imposed on Giancaspro. (Id.).
She clarified that Giancaspro “was responsible for giving [her] work to [Chan],” but that
she did not believe he was required to provide his own footage to Chan. (Id.).
9
and (iv) no longer allowed her to keep a key to the video editing room. (Trimiew
Dep. 201:9-203:5, 219:17-21). Trimiew believed these rules applied only to
her. (Id. at 201:11-16). An August 2014 email chain between Trimiew and
Topielski reflects that Topielski kept close tabs on Trimiew’s whereabouts and
required her to put her video shoots and other out-of-office obligations in the
Communications Calendar. (Curley Decl., Ex. 22). As one example, in
discussing whether Trimiew could attend a conference, Topielski informed her:
“You currently have free reign to schedule field shoots at liberty to complete
your assignments, but all of those shoots must be documented in the
Communications Calendar so that I, and the team, know what you are working
on and where you will be.” (Id. (August 13, 2014, 12:44 p.m., Topielski Email
to Trimiew)).
Trimiew’s problems with Topielski continued. On March 31, 2015,
Topielski admonished Trimiew for being out of the office without informing him
where she was. (Curley Decl., Ex. 33). The next day, in response, Trimiew
refused to leave her office without Topielski’s express consent. She wrote: “I
need to go to the [Second Avenue Subway Community Information Center].
You want me to now put in a request before I go places. I will wait for approval
and then leave for the shoot.” (Id., Ex. 35 (April 1, 2015, Trimiew Email to
Topielski)). Topielski then called Trimiew out on what he perceived to be her
petulance: “Rehema, this is ridiculous. … You need to keep me updated on
your scheduled work and I already know you are covering the CIC today.” (Id.
(April 1, 2015, Topielski Email to Trimiew)). Separately, in July 2015, Topielski
10
told Trimiew that he felt she was “not proactively keeping [him] up to date on
[her] activities.” (Id., Ex. 20 (July 20, 2015, 8:53 p.m., Topielski Email to
Trimiew)). Of note, Trent Reeves — a white male videographer who also worked
for Topielski — testified at his deposition that, like Trimiew, he was required to
provide Topielski with a daily update of his activities, and that he was also
required to send downloads of his video footage to Chan “for archival
purpose[s].” (Reeves Dep. 53:15-54:14, 71:4-25).
Trimiew alleges that her termination from MTACC was retaliatory. To
review, Trimiew filed her discrimination complaint in June 2014; her MTACC
contract was renewed in December 2014 and again in July 2015. (Curley
Decl., Ex. 15, 18). Trimiew’s contract expired in June 2015, and on May 20,
2015, Kwon emailed Topielski to inform him that she had spoken to the
President of MTACC and that “[h]e is in support of our decision to let [Trimiew]
go based on her poor performance and teamwork abilities.” (Id., Ex. 38).
Nevertheless, Trimiew’s contract was renewed until September 30, 2015. (Id.;
Def. 56.1 ¶ 63).
Kwon testified at her deposition that she did not renew Trimiew’s
contract after September because: “[Trimiew] did not improve. She didn’t
improve her interpersonal skills, her teamwork skills, her ability to take
directions. … [W]e really tried so hard, but it was just not a good fit.” (Kwon
Dep. 47:19-24). After her corporate communications contract ended, Trimiew
was immediately given a three-month contract with the East Side Access
division of MTACC. (Def. 56.1 ¶¶ 71-72). Trimiew’s East Side Access contract
11
was not extended at the end of that three-month period; she was told this was
for budgetary reasons. (Def. 56.1 ¶ 74; Curley Decl., Ex. 39).
2.
Winston Mitchell
Winston Mitchell is also African-American, and he was the manager of
the NYCTA video department for more than two decades. (Def. 56.1 ¶ 132). In
this capacity, Mitchell “created public service announcements and training
videos[,]” and, most notably, produced “a monthly public access television
program called ‘Transit Transit’” that “was broadcast on public television
stations in the greater New York area.” (Id. at ¶¶ 133-35).
a.
Mitchell’s Discrimination Claims
Like Trimiew, Mitchell’s discrimination claims center on his interactions
with Joe Chan. (See, e.g., Pl. 56.1 Opp. ¶ 141). Also like Trimiew, Mitchell felt
that Chan was overly critical of his work and encroached on his role.
Specifically, in about 2013 through 2014, Mitchell suspected that Chan was
“trying to take over all the video departments [at the various agencies of the
MTA].” (Curley Decl., Ex. 25 (February 18, 2014 Mitchell Email to DePalma);
id. at Ex. 26 (December 5, 2013 Mitchell Email to DePalma (“Just don’t want
Joe Chan to become[] my boss. If that is not going to happen I’m good.”)); see
also Mitchell Dep. 120:21-121:22 (“[Chan] takes it upon himself to give orders
and assignments to other video departments that he has no jurisdiction
over[.]”)). Mitchell also testified that the Long Island Railroad’s (“LIRR”) video
unit similarly felt that Chan was trying to “take over” their department; that
the employees of that department, all of whom were Caucasian, told Mitchell
12
that they also found Chan “difficult to work with,” but that Chan was more
difficult to Mitchell than he was to them. (Mitchell Dep. 91:23-92:3, 113:24115:21).
At his deposition, Mitchell testified about numerous instances in which
Chan spoke to him in a “demeaning and belittling” manner. (Mitchell
Dep. 65:21-66:2). As one example, Mitchell identified five instances when
Chan called him “old school,” or indicated that his practices were outmoded
and/or that Mitchell was “too old to do [video work].” (Id. at 71:5-76:23; Def.
56.1 ¶¶ 148-52). 6
Mitchell also recalled two instances when he felt singled-out or
demeaned by Chan because of his race. First, in September 2014, Chan
received an automated notice from YouTube that an episode of Transit Transit
had been flagged as potentially containing copyrighted material. (Curley Decl.,
Ex. 29 (September 3, 2014 YouTube Email)). This sparked a dispute between
Chan and Mitchell regarding whether the Transit Transit episode was covered
by the fair use doctrine, and this dispute is memorialized in a sharply-worded
email exchange. Chan forwarded the YouTube notice to Mitchell and others,
and asked them to “send along the info on the music/source/license and [he
would] dispute the claim with YouTube.” (Curley Decl., Ex. 29 (September 3,
2014, 12:51 p.m., Chan Email to Mitchell)). Mitchell responded to the group
that Transit Transit was a news organization of a government agency and, thus,
6
Mitchell does not assert an age discrimination claim in this litigation. (See First
Amended Complaint (Dkt. #18)).
13
was protected by the fair use doctrine. (Id. (September 3, 2014, 1:16 p.m.,
Mitchell email to Chan)). Chan disagreed and told Mitchell that his show was
“not a ‘news organization’” and that “[w]e’re not journalists[.]” (Id. (September
3, 2014, 1:43 p.m., Chan Email to Mitchell)). Mitchell wrote back to Chan: “It
is understood that you are not a journalist but Transit Transit and crew are
recognized as such[.] … Saying that we are not a legitimate news organization
is insulting to myself and my crew.” (Id. (September 3, 2014, 2:21 p.m.,
Mitchell Email to Chan)). The email exchange continued and the dispute
eventually escalated to involve management at the MTA and the NYCTA. (See
id.). Mitchell believes that Chan questioned his knowledge of copyright law
because of his race. (Mitchell Dep. 147:11-148:9 (“It shows a high level of
disrespect for my expertise in my job, that if I was White, I very much doubt he
would be questioning me.”)).
Second, Mitchell and Chan had a disagreement in July 2015 about a
drone demonstration. Mitchell had put on such a demonstration in 2014, and
hoped to do the same in 2015. (Def. 56.1 ¶ 154; Curley Decl., Ex. 41). Mitchell
sent out an email to alert his colleagues about the demonstration. He wrote: “I
had a number of calls about d[r]ones. I’m planning to set-up two in-flight
demos, from two companies on the same [] day,[] ASAP, for the Dept. of
Revenue.” (Curley Decl., Ex. 41 (June 15, 2015 Mitchell Email to Cashin)).
Chan was not on the original email, and he later asked to be kept in the loop
because he was (i) “the point person for drones & video at HQ,” and (ii) was
“working with MTA PD and Law Department on all the legal and technical
14
issues related to drones.” (Id. (July 10, 2015 Chan Email to Mitchell)). The two
then exchanged emails about whether and when Chan was ever put in charge
of drone initiatives at the MTA. (See id.). Ultimately, on July 13, 2015, Connie
DePalma, Mitchell’s manager, emailed him and said, “Cancel your July 22
[drone] meeting. I spoke with Al about his needs at Revenue, and he will
pursue with Joe.” (Id. (July 13, 2015 DePalma Email to Mitchell)).
b.
Mitchell’s Retaliation Claims
On June 12, 2014, Mitchell filed an internal discrimination complaint
based on Chan’s “hostile, intimidate[ng] and threatening behavior[.]” (Curley
Decl., Ex. 27). Mitchell cited, as examples, Chan’s statement that he would “do
as he pleases” with a video Mitchell created, and a comment by Chan that
Mitchell and his interns were an “entourage.” (Id.). Mitchell alleges that
Chan’s discriminatory conduct continued later in 2014 and into 2015, after the
complaint was filed. (See, e.g., Def. 56.1 ¶ 164).
Additionally, Mitchell alleges that his supervisors Connie DePalma and
Paul Fleuranges retaliated against him for filing a complaint by (i) cancelling
Transit Transit in October 2014; (ii) quashing his ideas for the newly-conceived
MTA FYI Network; (iii) systematically dismantling his department;
(iv) instructing him to cancel his drone demonstration; and (v) not paying for
him to attend an industry conference in Las Vegas. (Def. 56.1 ¶¶ 170, 185,
187-91; Mitchell Dep. 97:22-98:6, 160:3-161:10, 183:9-22).
Paul Fleuranges, who during the relevant period was the senior director
for corporate communications at the MTA, was involved in the decision to
15
cancel Transit Transit. (Fleuranges Dep. 30:18-22). He testified that the show
was canceled because
[T]he executive leadership team at [NYCTA] had been
working for several months on figuring out a way to
change the culture at [NYCTA] and [they] had c[o]me up
with a vision and a mission around people matter and
focusing on 21st century service … [a]nd it became clear
to me … that using regular posters was not going to be
an effective way to communicate this message and this
vision [throughout the MTA]. … So an effective way …
was that we use our digital screen network which was
at the time about 25 locations[.] … And the perfect
person in my mind to do it based on his experience was
[Mitchell] and the video unit.
(Id. at 31:2-32:6). He elaborated in his Declaration that he believed Transit
Transit could not serve the mission of increased employee outreach because it
was “not as dynamic” and “required … employees to take the initiative to watch
the program at home.” (Fleuranges Decl. ¶ 7). Fleuranges stated that he
concluded that this was the best way to proceed, and he asked DePalma to
inform Mitchell of his decision. (Fleuranges Dep. 32:9-17).
DePalma’s testimony corroborates Fleuranges’s. DePalma understood
from Fleuranges that Transit Transit was being canceled because the NYCTA
president “wanted to step up internal employee communications, [and] there
was a whole effort by his administration to more actively engage the workforce
and the use of video and developing a network[.]” (DePalma Dep. 54:16-22).
She informed Mitchell and others that the show would be canceled, and
recalled discussion about Mitchell and his department handling both Transit
Transit and its successor, the FYI Network, but believed that Mitchell and his
16
department had concerns that they did not have the staff to handle that
workload. (Id. at 57:1-59:3).
Mitchell testified at his deposition that DePalma called him into her office
and told him that Transit Transit would be canceled because “they were going
to go in a different direction … [to] move forward with the FYI Network, and
since [Mitchell’s video editor] was retiring, now was the best time.” (Mitchell
Dep. 166:4-7). Mitchell submits that his show was canceled because of the
complaint he filed against Chan; he alleges that NYCTA had no legitimate
reason to give up the show and the advertising that came with it. (See id. at
167:10-169:14).
Mitchell alleges that shortly after Transit Transit was canceled — and
after Chan had been cleared of any wrongdoing connected to Mitchell’s 2014
discrimination complaint — Fleuranges and DePalma “systematically and
purposefully started dismantling [Mitchell’s] department,” which “went from
doing 10 to 18 videos a month to four for all of the following year.” (Mitchell
Dep. 100:20-101:9). Moreover, even though initially he had been asked to
spearhead the new FYI Network, Mitchell’s supervisors later told him to stand
down and to stop work on generating content for this project. He testified:
I started reaching out to other departments saying
there’s no longer a Transit Transit, we are now moving
forward with the FYI Network; if you have any story
ideas, plead send them to me. And then I get an email
from [DePalma] saying, we love your enthusiasm …
about the FYI Network, but please don’t do anything yet
because we are still processing it. Three months later,
I get an email from [another NYCTA employee saying]
don’t do anything about the FYI Network yet because
there is no infrastructure. And then we made a video
17
for what we would like the FYI Network to look like,
and … they didn’t bother doing anything with it. They
said thanks, okay.
(Mitchell Dep. 175:13-176:5) Mitchell maintains that to this day, the NYCTA
has not built up the FYI Network to the extent his supervisors represented they
would at the time Transit Transit was canceled. (Id. at 178:10-179:8).
Fleuranges’s and DePalma’s recollections are somewhat different.
Fleuranges testified that he wanted Mitchell to lead the charge on the new FYI
Network because he “really needed someone of [Mitchell’s] ability based on his
TV production experience to help me figure out what kind of content we should
be running, how that content should run[,]” and so he “needed someone of
[Mitchell’s] credentials to help … do that and also build it out technically.”
(Fleuranges Dep. 32:20-33:7). DePalma also testified that Mitchell was asked
to present a proposal of content for the FYI Network. (DePalma Dep. 59:960:17). DePalma testified that she did not personally receive any proposal from
Mitchell. (Id. at 69:8-23). Fleuranges also testified that he did not recall seeing
Mitchell’s proposal for the FYI Network. (Fleuranges Dep. 54:25-55:24). Both
Fleuranges and DePalma testified that the FYI Network currently airs on
approximately 80 screens in 50 locations, and Fleuranges testified that the
NYCTA planned to add 40 additional screens. (Id. at 34:15-23; DePalma Dep.
64:4-5). DePalma added that the rollout of the new network “didn’t all happen
at once.” (DePalma Dep. 63:21-64:4).
Mitchell alleges that DePalma’s instruction that he cancel his 2015 drone
demonstration was also retaliation for his discrimination complaint against
18
Chan. (Mitchell Dep. 97:22-98:7). Finally, Mitchell alleges that he was
retaliated against when he was not permitted to attend a conference as a
representative of the NYCTA, and instead had to pay his own way and attend
as a representative of Medgar Evars College (where he taught). (Id. at 214:13215:5). However, emails confirm that the NYCTA ultimately permitted Mitchell
to attend the conference on company time (Curley Decl., Ex. 30), and Mitchell
explained that he decided not to take the NYCTA up on its offer because he “did
not want to be beholden to [DePalma] or to [Fleuranges]” (Mitchell Dep. 215:2124).
In August 2015, Mitchell filed a complaint with the Equal Employment
Opportunity Commission alleging discrimination and retaliation. (Curley Decl.,
Ex. 37). In May 2016, Mitchell initiated this lawsuit, and in June 2016,
Mitchell resigned from the NYCTA after accepting a position as an Assistant
Professor of Journalism at the College of the Bahamas. (Id. at Ex. 31). In his
resignation memo, Mitchell stated that he could “no longer stay in [his] position
due to the mismanagement of [his] department by Paul Fleuranges and Connie
DePalma.” (Id.).
3.
Plaintiffs’ Putative Comparators
Plaintiffs allege that Chan treated African-American employees differently
than employees of other backgrounds, and they proffer several other AfricanAmerican employees who were similarly mistreated. 7 Trimiew alleges that
7
The Court notes that much of the information provided by Plaintiffs on this point
consists of hearsay statements that would not be admissible at trial. Cf. Fed. R. Civ.
P. 56(c)(2) (“A party may object that the material cited to support or dispute a fact
19
Chan also micromanaged and criticized Marc Groce, Art Guidry, and Winston
Mitchell, and that “[W]hite or Asian employees were not subjected to the same
level of scrutiny[.]” (Pl. 56.1 Opp. ¶ 46). Though Trimiew conceded that she
did not have ample opportunity to see Chan interact with other employees, she
testified that she worked in a cubicle next to him for a time after Hurricane
Sandy and, during that time, did not observe him “treat white employees in the
same fashion that he treated her over that course of time.” (Id.; Trimiew
Dep. 142:3-143:12).
Mitchell likewise alleges that Chan mistreated African-American
videographers — namely, Mark Groce, James Sanon, and Art Guidry. (Pl. 56.1
Opp. ¶ 167). Specifically, he alleges that Chan told Groce to follow his lead on
a video shoot, even though Groce was more qualified, and that Chan instructed
Groce to film a video in a format that Mitchell felt was “not usable[.]” (Mitchell
Dep. 82:13-85:13). Chan also told Guidry that he could not post content to the
FYI Network without his approval, and assigned Sanon to do “grunt work[.]”
(Id. at 89:20-90:5, 94:1-95:22).
B.
Procedural Background
Plaintiffs filed their initial complaint in this matter on May 11, 2016, and
amended their pleadings on October 17, 2016. (Dkt. #1, 18). The Court held
an initial conference with the parties on November 9, 2016, after which the
cannot be presented in a form that would be admissible in evidence.”), 56(c)(4) (“An
affidavit or declaration used to support or oppose a motion must be made on personal
knowledge, set out facts that would be admissible in evidence, and show that the affiant
or declarant is competent to testify on the matters stated.”).
20
parties attempted to resolve this matter through mediation. (See Dkt. #21).
When those efforts proved unsuccessful, the parties continued with discovery.
Defendants then moved for summary judgment, filing their opening brief and
supporting papers on September 8, 2017. (Dkt. #38-44). Plaintiffs filed their
opposition and supporting papers on October 16, 2017. (Dkt. #48-50). This
motion became fully briefed with the filing of Defendants’ reply brief on
October 30, 2017. (Dkt. #51).
DISCUSSION
A.
Applicable Law
1.
Motions for Summary Judgment Under Federal Rule of Civil
Procedure 56(a)
Under Rule 56(a), a “court shall grant summary judgment 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); accord Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 247 (1986). In reviewing a motion for summary judgment, a court
must “construe the evidence in the light most favorable to the nonmoving
party, drawing all inferences in that party’s favor.” Jeffreys v. City of N.Y., 426
F.3d 549, 553 (2d Cir. 2005).
But while the non-moving party is entitled to have all facts construed in
its favor, it may not defeat summary judgment through a mere “show[ing] that
there is some metaphysical doubt as to the material facts[,]” and must instead
“come forward with specific facts showing that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87
21
(1986) (internal quotation marks and citation omitted). Ultimately, it matters
not whether the Court believes the evidence to favor one side or another;
rather, the Court must ascertain whether a reasonable jury could find for the
non-moving party on the evidence in the record. Jeffreys, 426 F.3d at 553.
Where a jury could not so find, “there is no genuine issue for trial.”
Matsushita, 475 U.S. at 587. Importantly, however, “[t]he function of the
district court in considering the motion for summary judgment is not to resolve
disputed questions of fact but only to determine whether, as to any material
issue, a genuine factual dispute exists.” Rogoz v. City of Hartford, 796 F.3d
236, 245 (2d Cir. 2015). In this regard, a district court “may not make
credibility determinations or weigh the evidence.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
The Second Circuit “has repeatedly emphasized ‘the need for caution
about granting summary judgment to an employer in a discrimination case
where, as here, the merits turn on a dispute as to the employer’s intent.’”
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (quoting
Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008)). Such caution is
required because direct evidence of discrimination is rare, and a court must
review the record for “circumstantial proof which, if believed, would show
discrimination”; that is to say, more than conclusory statements or
unsupported denials. Id. (internal quotation marks and citation omitted).
22
2.
Employment Discrimination Statutes
a.
Title VII, § 1981, and the NYSHRL
i.
Discrimination Claims
To survive a motion for summary judgment on claims brought under
Title VII, “a plaintiff must first establish a prima facie case of discrimination by
showing that: [i] she is a member of a protected class; [ii] she is qualified for
her position; [iii] she suffered an adverse employment action; and [iv] the
circumstances give rise to an inference of discrimination.” Vega v. Hempstead
Union Free Sch. Dist., 801 F.3d 72, 82-83 (2d Cir. 2015) (internal quotation
marks and citation omitted); accord Swierkiewicz v. Sorema N.A., 534 U.S. 506,
515 (2002); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). If a
plaintiff establishes a prima facie case, “a presumption arises that more likely
than not the adverse conduct was based on the consideration of impermissible
factors” and the “burden then shifts to the employer to ‘articulate some
legitimate, nondiscriminatory reason’ for the disparate treatment.” Vega, 801
F.3d at 83 (quoting Tx. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253-54
(1981) and McDonnell Douglas, 411 U.S. at 802). If the employer proffers a
legitimate reason for the alleged disparate treatment, “the burden shifts back to
the plaintiff to prove that the employer’s reason ‘was in fact pretext’ for
discrimination.” Id. (quoting McDonnell Douglas, 411 U.S. at 804).
Claims brought under § 1981 and the NYSHRL are similarly analyzed
using the McDonnell Douglas burden-shifting framework. Brown v. City of
Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). There are, however, important
23
distinctions between employment discrimination claims brought under Title VII
and § 1981. First, where, as here, the defendant is a governmental entity, “the
plaintiff is required to show that the challenged acts were performed pursuant
to a municipal policy or custom.” Patterson v. Cty. of Oneida, N.Y., 375 F.3d
206, 226 (2d Cir. 2004). Municipal liability can attach where the plaintiff
shows that the “discriminatory practice … was so persistent or widespread as
to constitute a custom or usage with the force of law” even if the plaintiff
cannot “identify an express rule or regulation.” Id. (internal quotation marks
and citation omitted). Second, whereas a Title VII claim may succeed “through
proof of a defendant’s mere negligence … a plaintiff pursing a claimed violation
of § 1981 … must show that the discrimination was intentional.” Id.
A critical component of Plaintiffs’ case under all three statutes is proof of
an adverse employment action. “A plaintiff sustains an adverse employment
action if he or she endures a materially adverse change in the terms and
conditions of employment” that is “more disruptive than a mere inconvenience
or an alteration of job responsibilities.” Joseph v. Leavitt, 465 F.3d 87, 90 (2d
Cir. 2006) (internal quotation marks and citation omitted). Common examples
include “termination of employment, a demotion evidenced by a decrease in
wage or salary, a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices unique to a
particular situation.” Id. Of importance here is the Supreme Court’s reminder
that proof of a “material adversity” draws an important line between “significant
[and] trivial harms[,]” the latter of which are not cognizable under Title VII
24
because that statute “does not set forth ‘a general civility code for the American
workplace.’” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)
(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)).
ii.
Retaliation Claims
Title VII contains an anti-retaliation provision that makes it unlawful for
an employer to discriminate against an employee because the employee has
opposed an unlawful practice or has made a charge of discrimination.
42 U.S.C. § 2000e–3(a). In brief, Title VII proscribes actions that are “harmful
to the point that they could well dissuade a reasonable worker from making or
supporting a charge of discrimination.” Hicks v. Baines, 593 F.3d 159, 162 (2d
Cir. 2010). Section 1981 and the NYSHRL are construed similarly.
Retaliation claims under Title VII, § 1981, and the NYSHRL are evaluated
under the McDonnell Douglas burden-shifting framework, pursuant to which a
plaintiff employee must establish a prima facie case by showing “[i] [the
employee] was engaged in protected activity; [ii] the employer was aware of that
activity; [iii] the employee suffered a materially adverse action; and [iv] there
was a causal connection between the protected activity and that adverse
action.” Rivera v. Rochester Genesee Regional Transp. Auth., 743 F.3d 11, 24
(2d Cir. 2014) (internal quotation marks omitted) (quoting Lore v. City of
Syracuse, 670 F.3d 127, 157 (2d Cir. 2012)). A materially adverse employment
action is one that “a reasonable employee would have found … materially
adverse, which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Id. at 25
25
(internal quotation marks omitted) (quoting Burlington N. & Santa Fe Ry. Co.,
548 U.S. at 68). The “reasonable employee” standard is an objective one, but
“context matters, as some actions may take on more or less significance
depending on the context” and even trivial acts “may take on a greater
significance when they are viewed as part of a larger course of conduct.” Id.
(alterations and internal quotation marks omitted) (quoting Tepperwien v.
Entergy Nuclear Operations, Inc., 663 F.3d 556, 568 (2d Cir. 2011)).
If a plaintiff meets his prima facie burden, the employer must then come
forward with a legitimate reason for the adverse employment action, after
which “the presumption of retaliation … drops from the picture” and the
plaintiff “must then come forward with [a] non-retaliatory reason is a mere
pretext for retaliation.” Kwan v. Andalex Grp. LLC, 737 F.3d 834, 844 (2d Cir.
2013). Moreover, the plaintiff “must show that retaliation was a but-for cause
of the adverse action, and not simply a substantial or motivating factor in the
employer’s decision.” Id. at 845 (internal quotation marks omitted) (quoting
Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362-63 (2013)). The
Second Circuit has held that “[a] plaintiff may prove that retaliation was a butfor cause of an adverse employment action by demonstrating weaknesses,
implausibilities, inconsistencies, or contradictions in the employer’s proffered
legitimate, nonretaliatory reasons for its action” because “[f]rom such
discrepancies, a reasonable juror could conclude that the explanations were a
pretext for a prohibited reason.” Id. at 846.
26
b.
The NYCHRL
“[B]ecause the NYCHRL calls for more expansive liability than its federal
and state counterparts[,]” Plaintiffs’ NYCHRL claims must be considered
separately. Arcos v. New Sch. Univ., No. 14 Civ. 2678 (KPF), 2017 WL
3868495, at *5 (S.D.N.Y. Aug. 31, 2017) (quoting Mihalik v. Credit Agricole
Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013)). The NYCHRL
departs from the McDonnell Douglas burden-shifting paradigm in two material
respects: First, a plaintiff need not show an adverse employment action to
prevail under the NYCHRL; he need only “show differential treatment — that
she is treated ‘less well’ — because of a discriminatory intent.” Makinen v. City
of N.Y., 167 F. Supp. 3d 472, 483 (S.D.N.Y. 2016) (emphasis added) (internal
quotation marks omitted) (quoting Mihalik, 715 F.3d at 110), rev’d in part on
other grounds, 722 F. App’x 50, 52 (2d Cir. 2018) (summary order).
To support a retaliation claim under the NYCHRL, “the plaintiff must
show that she took an action opposing her employer’s discrimination, and that,
as a result, the employer engaged in conduct that was reasonably likely to
deter a person from engaging in such action.” Mihalik, 715 F.3d at 112. The
NYCHRL’s retaliation provision is broadly construed, and summary judgment is
not appropriate unless “‘a jury could not reasonably conclude from the
evidence that such conduct was … reasonably likely to deter a person form
engaging in protected activity.’” See id. (quoting Williams v. N.Y.C. Hous. Auth.,
872 N.Y.S.2d 27, 34 (1st Dep’t 2009)).
27
B.
Analysis
1.
Defendants’ Motion for Summary Judgment on Trimiew’s
Federal Discrimination and Retaliation Claims Is Granted
a.
Trimiew’s Discrimination Claims 8
Defendants do not contest that Trimiew is a member of a protected class
or that she was qualified for her position at MTACC. (See Def. Br. 16). They
argue instead that Trimiew has not shown that she suffered an adverse
employment action or that any of the alleged discrimination was motivated by
race. (Id.). The Court agrees. To review, Trimiew’s discrimination claims
under Title VII and 42 U.S.C. § 1981 rest on her allegations that Chan spoke to
her in harsh and belittling tones, and on the six episodes described in the
Statement of Facts. 9 It is settled law in this Circuit that an adverse
employment action is one that causes a “materially adverse change in the
terms and conditions of employment” that rises above the level of a “mere
inconvenience or an alteration of job responsibilities.” Stoddard v. Eastman
Kodak Co., 309 F. App’x 475, 478 (2d Cir. 2009) (summary order) (quoting
Mathirampuzha v. Potter, 548 F.3d 70, 78 (2d Cir. 2008)). Evidence of criticism
by an employer without evidence that such criticism “resulted in any alteration
of [the plaintiff’s] working conditions or job responsibilities” will not defeat
8
Defendants argue, in a footnote, that because Trimiew was a third-party contractor and
MTACC was not her employer, MTACC may not be held liable on her employment
discrimination claims. (Def. Br. 14 n.3). The sole case that Defendants cite for this
proposition, Conde v. Sisley Cosmetics USA, Inc., No. 11 Civ. 4010 (RJS), 2012 WL
1883508 (S.D.N.Y. May 23, 2012), is distinguishable on its facts, and its reasoning as
applied to the facts of this case suggests that MTACC is, in fact, able to be held liable
for Trimiew’s employment discrimination claims, cf. id. at *3-4.
9
Neither Plaintiff brings a hostile work environment claim. (Pl. Opp. 2 n.1).
28
summary judgment, id. at 479, nor will allegations of reprimands or increased,
even excessive, scrutiny from supervisors, Thomson v. Odyssey House, 652 F.
App’x 44, 46 (2d Cir. 2016) (summary order) (holding that “excessive scrutiny is
not an actionable employment action”). See also Reddy v. Salvation Army, 591
F. Supp. 2d 406, 426 (S.D.N.Y. 2008) (holding that employer’s “belittling and
condescending tone” coupled with excessive scrutiny did not effect an adverse
employment action); Stembridge v. City of N.Y., 88 F. Supp. 2d 276, 283
(S.D.N.Y. 2000) (concluding that “plaintiff has failed to provide evidence to
support a finding that the reprimand had a cognizable or material impact on
the terms or conditions of his employment”). Indeed, “[i]t hardly needs saying
that a criticism of an employee (which is part of training and necessary to allow
employees to develop, improve and avoid discipline) is not an adverse
employment action.” Weeks v. N.Y. State (Div. of Parole), 273 F.3d 76, 85 (2d
Cir. 2001), abrogated on other grounds by Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101 (2002).
In attempting to satisfy the adverse action element, Trimiew claims that
“[t]here is an issue of material fact whether Ms. Trimiew[’s] discretion in
producing videos for external consumption became diminished in the face of
incessant subjective criticism from Mr. Chan that resulted in a concomitant
increase in Mr. Chan’s control over her output.” (Pl. 56.1 Opp. ¶ 33). For
support, Trimiew cites to portions of her deposition where she testified that
(i) after Topielski became her manager “he wanted more of Joe Chan to be part
29
of the review process” (Trimiew Dep. 54:17-55:23), and (ii) Chan would put
down her work (id. at 94:12-95:9).
Taking as true Plaintiff’s testimony that, over time, Chan assumed a
greater role in reviewing her videos, the Court nevertheless finds that his
increased role did not effect a material change in the terms or conditions of
Trimiew’s employment. Trimiew was, at all relevant times, a videographer who
generated video content of MTACC’s major construction projects; there is no
allegation that she was ever demoted or assigned a different role. There is no
factual dispute that, at all relevant times, those videos underwent a review
process before they could be disseminated to the public. (Trimiew Dep. 53:2-5
(testifying that her videos would go through a review process after she
completed her edits)). There is likewise no factual dispute that Chan always
played a role in that review process. (Id. at 53:12-54:16 (testifying that Chan
reviewed her videos even in the early stages of her employment)). More to the
point, even if Trimiew did lose some measure of creative control over time, and
even if Chan were unkind or unfair in his criticisms, Trimiew has not
established that Chan’s increased editorial control “significantly diminished
[her] material responsibilities[.]” See Feingold v. New York, 366 F.3d 138, 152
(2d Cir. 2004). Accordingly, the Court cannot find an adverse employment
action on these facts.
Trimiew also alleges that she was taken off a video project for the new
Fulton Street subway station and switched to a less desirable project. This,
too, is not an adverse employment action. Simmons-Grant v. Quinn Emanuel
30
Urquhart & Sullivan, LLP, 915 F. Supp. 2d 498, 504 (S.D.N.Y. 2013) (holding
that transfer from one case to another did not constitute an adverse
employment action) (citing Brown v. Snow, No. 02 Civ. 7985 (GEL), 2006 WL
623594, at *5 (S.D.N.Y. Mar. 13, 2006) (“[S]ubjective dissatisfaction with
assignments does not constitute adverse employment action.”), aff’d sub nom.
Brown v. Paulson, 236 F. App’x 654 (2d Cir. 2007) (summary order))). Trimiew
was eventually let go from MTACC, but she is quite clear that this termination
evidences retaliation, and not racial discrimination. (E.g., Trimiew Dep. 225:27). Because Trimiew has not met her minimal burden to establish an adverse
employment action, Defendants are entitled to summary judgment on her
discrimination claim under Title VII. Additionally, because Trimiew has failed
to raise a genuine dispute regarding a municipal policy or intentional conduct,
summary judgment is warranted as to her § 1981 claim.
b.
Trimiew’s Retaliation Claims
Trimiew’s retaliation claims under these statutes also fail. Trimiew filed
her discrimination complaint about Chan’s behavior on June 24, 2014.
Shortly before that time, Topielski became Trimiew’s manager. Trimiew alleges
that after she filed the complaint, Topielski (i) involved Chan to a greater extent
in reviewing her work; (ii) required her to send periodic downloads of footage to
Chan; (iii) forbade her from working with interns; and (iv) demanded that she
inform him of her daily work plan and of any time she would be out of the
office. Trimiew also alleges that MTACC’s decision not to renew her contract
with the communications group in September 2015 was retaliatory.
31
With the exception of MTACC’s decision not to renew Trimiew’s contract,
these actions are not materially adverse and thus not sufficient to discharge
Trimiew’s prima facie burden. As explained above, the Second Circuit has held
that excessive scrutiny by a supervisor is not an actionable adverse
employment action. Thomson, 652 F. App’x at 46. Trimiew’s allegations
suggest that she was inconvenienced by Topielski’s management style, but
neither Topielski’s vigilance over his employees’ schedules nor his acquiescence
to Chan’s requests suffices to constitute a materially adverse action.
The same can be said for Trimiew’s allegation that she was, at some
point, no longer permitted to work with student interns. Trimiew testified that
the goal of the internship was for the intern to “get experience in video and
camera[,]” and they would assist her with various projects. (Trimiew
Dep. 300:4-12). Trimiew did not testify that her responsibilities or workload
changed after she was no longer able to work with interns. Even taken
together, these actions are not materially adverse.
Trimiew’s loss of her contract with the communications group is, clearly,
an adverse employment action. That said, any causal link between Trimiew’s
June 2014 discrimination claim against Chan and her September 2015
discharge is vitiated by the undisputed fact that MTACC renewed Trimiew’s
contract twice after she filed the complaint. (Curley Decl., Ex. 18). See Byrne
v. Telesector Res. Grp., Inc., 339 F. App’x 13, 17-18 (2d Cir. 2009) (summary
order) (affirming conclusion that subsequent promotion “effectively negated”
retaliation claim). And even assuming that Trimiew could meet her minimal
32
burden to establish a causal connection between her discrimination complaint
in June 2014 and her termination from the communications groups in
September 2015, MTACC offers a legitimate, non-retaliatory reason for the
decision not to renew Trimiew’s contract in Kwon’s testimony:
I had a lot of different reports from people like — not
just in one department, but from various departments
that [Trimiew] was very difficult to work with, that she
had an entitled attitude. … [W]e even ha[d] complaints
from the interns that came to me through our … HR
manager and that was a major red flag for her[,]
because … [Jones] said … interns never complain.
(Kwon Dep. 42:13-25).
Having offered a performance-based reason for the decision not to renew
Trimiew’s contract, MTACC is relieved of any presumption of discrimination,
and the burden shifts back to Trimiew to prove that retaliation was the but-for
cause of her termination. Kwan, 737 F.3d at 845-46. Once again, Trimiew
need not prove that “retaliation was the only cause of the employer’s action,
but only that the adverse action would not have occurred in the absence of the
retaliatory motive.” Id. at 846. This she cannot do. Kwon testified that these
interpersonal issues arose from the very beginning — indeed, during the first
week — of Trimiew’s employment and persisted throughout it. That is to say,
Trimiew’s superiors had legitimate, non-discriminatory concerns about her
performance before she filed a complaint; they renewed her contract twice after
the complaint and in spite of their concerns; and eventually, 15 months after
the filing of the discrimination complaint, they decided not to renew her
contract.
33
Trimiew states that there is a factual dispute over whether MTACC
contracts were automatically renewed. (Pl. 56.1 Opp. ¶ 5). For this, she cites
her deposition testimony that she “presumed” that her employment term at
MTACC was “indefinite.” (Id.). But this rumination is contradicted by
documentary evidence in the record that MTACC contracts were, indeed, for a
set period and had to be renewed thereafter. (See Curley Decl., Ex. 18).
Trimiew also submits that there is a factual dispute over whether
Trimiew’s interpersonal skills formed the basis for Kwon’s decision. (Pl. 56.1
Opp. ¶ 11). This argument also fails. Trimiew cites Kwon’s deposition
testimony as support, but Kwon testified consistently that she decided not to
renew Trimiew’s contract because of Trimiew’s long, uninterrupted history of
problematic interpersonal interactions with colleagues. (Kwon Dep. 41:1047:24). Trimiew submits that this explanation is pretextual because these
problems had been “tolerated from the outset[.]” (Pl. Opp. 20). But nearly all
sub-standard employee performance is tolerated for some time by the employer
before it results in a discharge. Trimiew has not shown weaknesses,
implausibilities, inconsistencies, or contradictions in Kwon’s explanation, and,
as such, she has not established that retaliation was the but-for cause of
Kwon’s decision not to renew her contract.
A plaintiff must do more than simply state that a fact is disputed for it to
be so; rather, she “must come forward with specific facts showing that there is
a genuine issue for trial.” Matsushita, 475 U.S. at 587 (internal quotation
marks and citation omitted). Trimiew’s evidence does not support her
34
contention that MTACC’s reason for not renewing her contract was pretextual,
and shows instead that there is little more than a “metaphysical doubt as to
the material facts.” See id. at 586. For this reason, Defendants are entitled to
summary judgment on Trimiew’s Title VII and § 1981 retaliation claims.
2.
Defendants’ Motion for Summary Judgment on Mitchell’s
Federal Discrimination and Retaliation Claims Is Granted
a.
Mitchell’s Discrimination Claims
Mitchell’s claims for discrimination and retaliation similarly fail.
Beginning with the former, insofar as it rests on Chan’s harsh tones or
belittling statements, these allegations are not actionable as a matter of law.
See, e.g., LeeHim v. N.Y.C. Dep’t of Educ., No. 17 Civ. 3838 (PAE), 2017 WL
5634128, at *4 (S.D.N.Y. Nov. 21, 2017) (“[Plaintiff] has alleged what may have
been rude and intemperate conduct, but Title VII provides no remedy for such
conduct[.]”). 10
Mitchell alleges two additional episodes of discrimination: (i) his dispute
with Chan regarding possible copyright infringement in an episode of Transit
Transit; and (ii) the cancelation of his planned drone demonstration. (Def. 56.1
¶¶ 154-65). The Court does not doubt the sincerity of Mitchell’s belief that he
was questioned or undermined because of his race, but there is no evidence in
the record that his interactions with Chan, however acrimonious, had any
adverse effect on the terms and condition of Mitchell’s employment. Among
10
Mitchell also alleges several occasions when Chan called him “old school” or suggested
his techniques were outmoded. Mitchell does not bring an age discrimination claim,
and these statements do not evidence race-based discrimination. They are also, as
Defendants note, partially time-barred. (Def. Br. 21-22).
35
other things, the record does not indicate that providing expertise on copyright
law or coordinating drone demonstrations were core features of Mitchell’s role
at the NYCTA that were taken away from him on account of Chan’s alleged
discrimination.
Plaintiffs’ brief argues, unconvincingly, that Mitchell suffered an adverse
employment action because “[h]e increasingly was required to produce video
unrelated to his Department’s output, at the behest of Mr. Chan.” (Pl. Opp. 8).
Mitchell testified at his deposition about two instances when his supervisors —
DePalma and Fleuranges — made Mitchell’s department shoot a video for Chan
that Mitchell believes Chan should have shot himself. (Id. (citing Mitchell
Dep. 31:16-32:6)). Being asked occasionally to perform work outside one’s
stated responsibilities is not an adverse employment action. See Joseph, 465
F.3d at 90 (holding that alteration in job responsibilities is not an adverse
employment action). And like Trimiew, Mitchell has failed to present evidence
of a municipal policy or intentional conduct. Accordingly, his discrimination
claims under Title VII and § 1981 fail as a matter of law, and Defendants are
entitled to summary judgment.
b.
Mitchell’s Retaliation Claims
The Court proceeds to consider Mitchell’s federal retaliation claims.
Mitchell alleges that DePalma and Fleuranges retaliated against him by
(i) canceling Transit Transit in October 2014; (ii) quashing his ideas for the
newly-conceived MTA FYI Network; (iii) systematically dismantling his
department; (iv) instructing him to cancel his drone demonstration; and
36
(v) not paying for him to attend an industry conference in Las Vegas. The
cancelation of Mitchell’s proposed drone demonstration and the decision that
Mitchell would need to pay his own way to an industry conference are not
materially adverse actions, and to the extent that Mitchell’s retaliation claim is
based on those allegations, it fails as a matter of law.
Mitchell’s remaining allegations present closer questions. In evaluating
the sufficiency of these allegations, the Court is mindful of guidance from the
Second Circuit that material adversity is determined objectively, and that
“[a]lleged acts of retaliation must be evaluated both separately and in the
aggregate, as even trivial acts may take on greater significance when they are
viewed as part of a larger course of conduct.” Tepperwien, 663 F.3d at 568.
Stated summarily, Mitchell’s retaliation allegations are as follows:
The NYCTA canceled Transit Transit, the show that was
the centerpiece of Mitchell’s job; his supervisors
represented that the program did not meet the NYCTA’s
need for dynamic programming, and Mitchell was
instead asked to take the lead to produce content for
the FYI Network.
Thereafter, Mitchell attempted to do just that, and
reached out colleagues to solicit ideas for content; those
efforts were quashed by supervisors who told Mitchell
that they “appreciated his enthusiasm,” but asked that
he stand down because the NYCTA did not have the
infrastructure in place to bring the FYI Network to
fruition at that time.
When Mitchell was no longer producing Transit Transit
and was not permitted to move forward with the FYI
Network, he was effectively relegated to residual tasks
like making public service announcements and training
videos, a fraction of the work he once performed.
37
(Mitchell Dep. 100:20-101:9, 165:7-179:5). 11 Mitchell further claims a close
temporal proximity among these events: He filed his discrimination complaint
in June 2014, and he alleges that the NYCTA cleared Chan of any wrongdoing
in connection with that complaint in October 2014, and that Transit Transit
was canceled the following month.
Taking these allegations together, the Court believes that Mitchell has
established a prima facie case of retaliation, insofar as a reasonable employee
in Mitchell’s position could see the incremental loss of responsibility,
culminating in a reduction in his role, as a material adverse action that was
causally connected to his discrimination complaint.
At this point, the burden shifts to Defendants to “articulate some
legitimate, non-retaliatory reason for the employment action.” Kwan, 737 F.3d
at 845. As detailed above, Fleuranges and DePalma testified that the NYCTA
executive team wanted more dynamic programming that did not require the
level of advance planning that went into each monthly episode of Transit
Transit and that could be more easily accessed by NYCTA employees, leading to
management’s decision to cancel Transit Transit. (Fleuranges Dep. 31:2-32:6;
DePalma Dep. 54:16-56:10). Because Defendants proffer a legitimate business
reason for the decision to cancel Transit Transit and establish the FYI Network
11
At one point, Mitchell testified that he was eventually not given any work to do at all.
He stated: “We went from making 10 to 15 videos a month to four all of … the year that
I was there before I left. We used to do training films, we used to do safety films, we
used to do PSAs. We were no longer asked to do any of that.” (Mitchell Dep. 160:9-15).
He later contradicted himself and testified that his team was, in fact, asked to make
training videos and PSAs, even if they may not have been asked to make as many as in
previous years. (Id. at 184:22-185:2).
38
in its place, Mitchell must come forward with evidence sufficient to create a
genuine dispute of fact that Defendants’ explanation is pretextual, and that
retaliation was the but-for cause of the adverse action. Kwan, 737 F.3d at
845-46; see also Vega, 801 F.3d at 90-91. Here again, “‘but-for’ causation does
not require proof that retaliation was the only cause of the employer’s action,
but only that the adverse action would not have occurred in the absence of the
retaliatory motive.” Kwan, 737 F.3d at 846.
Mitchell cannot discharge this burden. To be sure, Mitchell disputes the
wisdom of the decision to cancel Transit Transit, and the Court does not
minimize the fervor with which Mitchell alleges that the decision was
misguided. And Mitchell does present evidence — namely, his supervisors’
requests that he hold off on generating content for the FYI Network — that
merits consideration. (See Mitchell Dep. 167:10-17, 175:8-177:9). But after a
careful review of the record, the Court can find no genuine dispute that the FYI
Network did, eventually, come into being, and that it operates today.
Accordingly, no reasonable jury could find on this record that NYCTA
determined to, or did in fact, dismantle Transit Transit to retaliate against
Mitchell.
Mitchell testified numerous times that “there is no FYI Network[;] to this
day there’s none[,]” but he would often follow that testimony with an
acknowledgement that the FYI Network was, today, on “six monitors.” (Id. at
160:23-161:7, 173:23-25, 174:12-14, 174:22-175:5). And even taking as true
Mitchell’s version that the FYI Network airs today on only six screens, rather
39
than the 80 screens to which Fleuranges and DePalma testified, there can be
no genuine dispute that the FYI Network exists.
Mitchell’s own testimony indicates that his content ideas were rejected
not because of retaliation, but because of artistic differences or a lack of
infrastructure. He testified that (i) DePalma told him following a presentation
in January 2015 that his ideas were “not what they [were] looking for,” but that
she was not sure what they were looking for; and (ii) DePalma told him in
September 2015 that the FYI Network infrastructure was still in its early
stages. (Mitchell Dep. 208:10-17, 245:1-12). Mitchell conceded that the
NYCTA had been trying to build up the FYI Network infrastructure for the
preceding three years, with less than complete success. (Id. at 245:1-12).
Mitchell’s own testimony confirms that the NYCTA’s problem developing
adequate video-feed infrastructure for the FYI Network predated his
involvement in the project — and, more importantly, the filing of his internal
complaint. Indeed, he echoes Defendants’ witnesses in explaining why
management’s promise to deliver a more robust setup did not proceed on
schedule. On these facts, no reasonable jury could find that the NYCTA failed
to develop, or even delayed the development of, the FYI Network as a form of
retaliation against Mitchell.
Similarly, the facts that the NYCTA did not accept Mitchell’s proposals
for FYI Network content and failed to build up the infrastructure as expected
are not evidence that the NYCTA’s non-retaliatory reasons for canceling Transit
Transit and for not accepting his proposals were pretextual. Mitchell takes the
40
post hoc ergo propter hoc view of causation (Mitchell Dep. 195:19-198:5), but
the Court cannot do the same. Even if Mitchell were correct that NYCTA
management was, as he put it, “delusional” for believing that the FYI Network
would succeed (id. at 248:3), shortsighted or even failed business decisions like
those identified here are not sufficient to raise a genuine dispute of material
fact as to Mitchell’s retaliation claim. In short, because Mitchell fails to identify
sufficient weaknesses, implausibilities, and inconsistencies in Defendants’
proffered reason for the adverse action, the Court finds that summary
judgment is warranted as to his retaliation claims under Title VII and § 1981.
C.
The Court Exercises Supplemental Jurisdiction over Plaintiffs’
NYSHRL Claims and Declines Supplemental Jurisdiction over
Plaintiffs’ NYCHRL Claims
28 U.S.C. § 1367(c)(3) grants district courts discretion to decline
supplemental jurisdiction over pendent state and local-law claims “if … the
district court has dismissed all claims over which it has original jurisdiction.”
When considering whether to retain jurisdiction, a district court “balances the
traditional values of [i] judicial economy, [ii] convenience, [iii] fairness, and
[iv] comity[.]” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir.
2006) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988). “[I]n
the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction doctrine …
will point toward declining to exercise jurisdiction over the remaining state-law
claims.” Cohill, 484 U.S. at 350 n.7; see also Motorola Credit Corp. v. Uzan, 388
F.3d 39, 56 (2d Cir. 2004) (“[O]ur Court has held, as a general proposition, that
41
‘if [all] federal claims are dismissed before trial …, the state claims should be
dismissed as well.’” (citation omitted)).
Here, the balance of factors tips in favor of retaining supplemental
jurisdiction over Plaintiffs’ NYSHRL claims — which mirror their federal-law
counterparts — but declining jurisdiction over Plaintiffs’ NYCHRL claims.
Judicial economy, convenience, and fairness are not served by the Court
declining to analyze Plaintiffs’ NYSHRL claims, where those claims utilize the
same standards as Plaintiffs’ federal-law claims. While the Court has
appropriate concerns about comity, it is mindful that state courts frequently
look to federal law when discussing NYSHRL claims. On balance, because
Plaintiffs’ NYSHRL claims are largely coextensive with their federal-law claims,
the Court retains jurisdiction. Vuona v. Merrill Lynch & Co., Inc., 919 F. Supp.
2d 359, 393 (S.D.N.Y. 2013) (retaining supplemental jurisdiction over NYSHRL
claims but declining supplemental jurisdiction over NYCHRL claims). And for
the reasons articulated in the preceding section, Plaintiffs’ discrimination and
retaliation claims under the NYSHRL fail, and summary judgment is granted in
Defendants’ favor.
The Court’s concern about comity is much stronger as to Plaintiffs’
NYCHRL claims, which are analyzed under a markedly different standard from
their federal- and state-law claims. See Williams v. N.Y.C. Hous. Auth., 872
N.Y.S.2d 27 (1st Dep’t 2009). Judicial economy is not served by this Court
reviewing local-law claims where no federal claims remain, and the Court is not
concerned that review of Plaintiffs’ NYCHRL claims in state court will be
42
inconvenient or unfair, particularly where the parties have developed discovery
in this action and where Plaintiffs can revivify their NYCHRL claims within six
months under N.Y. C.P.L.R. § 205. See Vuona, 919 F. Supp. 2d at 394.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment on
Plaintiffs’ federal and state claims is GRANTED, and the Court declines to
exercise supplemental jurisdiction over Plaintiffs’ NYCHRL claims and
dismisses them without prejudice. The Clerk of Court is directed to terminate
all pending motions, adjourn all remaining dates, and close this case.
SO ORDERED.
Dated:
July 17, 2018
New York, New York
__________________________________
KATHERINE POLK FAILLA
United States District Judge
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