Pinkston-Shay v. Metropolitan Transportation Authority

Filing 53

OPINION AND ORDER re: 35 MOTION for Summary Judgment . filed by Metropolitan Transportation Authority. The defendant's September 25, 2020 motion for summary judgment on the plaintiffs Title VII claims is granted. The Court decli nes to exercise supplemental jurisdiction over the state law claims. The Clerk of Court is directed to enter judgment for the defendant on the complaint's federal claims and close the case. (Signed by Judge Denise L. Cote on 4/1/2021) (jca) Transmission to Orders and Judgments Clerk for processing.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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KENYA PINKSTON-SHAY,
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Plaintiff,
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-v:
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METROPOLITAN TRANSPORTATION
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AUTHORITY,
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Defendant.
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19cv1671 (DLC)
OPINION AND
ORDER

APPEARANCES
For plaintiff Kenya Pinkston-Shay:
Alan Edward Wolin
Wolin & Wolin
420 Jericho Turnpike, Suite 215
Jericho, NY 11753
For defendant Metropolitan Transportation Authority:
Alison Leigh MacGregor
Brian Isaac Confino
Metropolitan Transportation Authority
2 Broadway New York, NY 10004
DENISE COTE, District Judge:
Kenya Pinkston-Shay, a police officer with the Metropolitan
Transportation Authority (“MTA”), contends that the MTA engaged
in race and gender discrimination when it failed to promote her
to sergeant in 2018, based on her results in a 2014 examination.
Instead, the MTA made promotions in 2018 from its 2018
sergeant’s examination, which Pinkston-Shay did not take.

The

MTA has moved for summary judgment.

For the reasons stated

below, the defendant’s motion for summary judgment is granted.
Background
The MTA maintains its own police department, the
Metropolitan Transportation Authority Police Department
(“MTAPD”).

In October 2003, the MTAPD hired Pinkston-Shay, an

African-American woman, as a police officer.
The MTAPD provides a written multiple-choice examination
(“Exam”) for MTAPD officers who wish to be promoted to the rank
of sergeant.

Police officers who have been employed with the

MTAPD for three years or more are eligible to sit for the Exam.
The Exam is prepared and scored by a third-party vendor.

The

results are used to generate a list of candidates, ranked in
order of their test scores, who are eligible to be promoted to
the rank of sergeant (the “List”).
every three to four years.

An Exam is generally given

The most recent Exams were given in

2000, 2003, 2007, 2014, and 2018.

The process that results in

the creation of a new List can take up to two years.
In promoting officers to sergeant, the MTAPD strictly
follows the List; all promotions to sergeant are made in order
of the rankings on the List.

Because it is more efficient to

train and hold promotion ceremonies for multiple sergeants at
one time, several officers are usually promoted at a time.

2

Promotions are generally made once or twice a year and are
published to the entire MTAPD through Personnel Orders.
The issuance of a List extinguishes the previous List; all
promotions are made from the newest List.

In the past twenty

years, the MTAPD has never exhausted a List.

In other words, it

has never hired every candidate on a List.
On March 28, 2014, the MTAPD announced that the 2014 Exam
would take place on June 29, 2014.

Pinkston-Shay took the Exam.

On October 17, 2014, the MTAPD issued the 2014 List.
Shay ranked 64th out of 105 on the List.

Pinkston-

Of the 105, 14 were

African-American (13.3%) and 12 were female (11.4%).
Between October 2014 and December 2017, the MTAPD issued
seven different Personnel Orders, promoting in order the
candidates ranked 1st through 62nd on the 2014 List.

In total,

7 of the 14 African-Americans (50.0%) and 4 of the 12 women
(33.3%) on the 2014 List were promoted to the rank of sergeant.
The final group of candidates to be promoted off the 2014
List were promoted in a Personnel Order dated December 22, 2017.
This group consisted of 11 candidates, 2 of whom were AfricanAmerican and 2 of whom were female.

A third African-American

candidate would have been included in that group, but he had
left the MTAPD by the time that Personnel Order was issued.

3

In May 2016, the MTAPD began the process for creating a new
Exam and List.

On November 6, 2017, the MTAPD announced that an

Exam would be held on February 4, 2018.

The third-party vendor

provided the MTAPD with the 2018 List on May 23, and the MTAPD
published that List on June 4.1
The first promotions off of the 2018 List were made on
September 24, 2018.

In a single Personnel Order, the MTA

promoted the top 8 candidates on the 2018 List to sergeant.

Of

these 8 candidates, 1 was African-American and none were women.
Pinkston-Shay did not sit for the 2018 Exam.
she was not on the 2018 List.
sergeant.

As a result,

Pinkston-Shay was not promoted to

She has since left the MTA.

Pinkston-Shay filed a claim with the federal Equal
Employment Opportunity Commission alleging that the defendant
discriminated against her on account of her race and gender.
November 27, 2018, the EEOC issued Pinkston-Shay a Notice of
Right to Sue.
On February 22, 2019, Pinkston-Shay filed this action,
complaining that the MTA discriminated against her when it
failed to promote her in 2018 to the rank of sergeant.

She

brings federal claims pursuant to Title VII and state law

1

The vendor estimated on July 18, 2017 that the List would be
ready in February or March 2018.
4

On

claims.

On September 25, 2020, following the completion of

discovery, the defendant moved for summary judgment.
motion became fully submitted on December 11.

That

The federal

claims are addressed below; the Court declines to exercise
supplemental jurisdiction over the state law claims.
Discussion
Summary judgment may not be granted unless all of the
submissions taken together “show[] 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).

“Summary

judgment is appropriate when the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party.”

Smith v. Cty. of Suffolk, 776 F.3d 114, 121 (2d Cir.

2015) (citation omitted).

“Where, as here, the party opposing

summary judgment bears the burden of proof at trial, summary
judgment should be granted if the moving party can point to an
absence of evidence to support an essential element of the
nonmoving party’s claim.”

Gemmink v. Jay Peak Inc., 807 F.3d

46, 48 (2d Cir. 2015) (citation omitted).

In making this

determination, a court must “draw[] all inferences in favor of
the nonmoving party.”

Id.

Once the moving party has asserted facts demonstrating that
the non-movant’s claims cannot be sustained, the opposing party

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“must come forward with specific evidence demonstrating the
existence of a genuine dispute of material fact.”

Id.

“[T]he

party opposing summary judgment may not merely rest on the
allegations or denials of [her] pleading; rather [her] response,
by affidavits or otherwise as provided in the Rule, must set
forth specific facts demonstrating that there is a genuine issue
for trial.”

Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)

(citation omitted).

“[C]onclusory statements, conjecture, and

inadmissible evidence are insufficient to defeat summary
judgment.”

Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317

(2d Cir. 2011) (citation omitted).

Only disputes over material

facts preclude the entry of summary judgment.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

“An issue of

fact is genuine and material if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Cross Commerce Media, Inc. v. Collective, Inc., 841 F.3d 155,
162 (2d Cir. 2016).
The plaintiff’s federal claims, brought pursuant to Title
VII of the Civil Rights Act of 1964, are for intentional and
disparate impact race and gender discrimination.

Title VII

makes it unlawful for an employer to “discriminate against any
individual with respect to [her] compensation, terms,
conditions, or privileges of employment, because of such

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individual’s race, color, religion, sex, or national origin.”
42 U.S.C. § 2000e-2(a)(1).

Title VII discrimination claims “may

be proven under a disparate treatment or disparate impact theory
of liability.”

Legg v. Ulster Cty., 820 F.3d 67, 72 (2d Cir.

2016).
I.

Disparate Treatment
Under Title VII, intentional discrimination is known as

“disparate treatment” discrimination.
Inc., 975 F.3d 202, 207 (2d Cir. 2020).

Mandala v. NTT Data,
“Because it is often

difficult to obtain direct evidence of discriminatory intent,”
Title VII disparate treatment claims are evaluated under the
burden-shifting framework of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).
(2d Cir. 2019).

Menaker v. Hofstra Univ., 935 F.3d 20, 30

The McDonnell-Douglas standard applies to both

race and sex discrimination actions brought under Title VII.
See Walsh v. New York City Hous. Auth., 828 F.3d 70, 75 (2d Cir.
2016) (sex discrimination); Kirkland v. Cablevision Sys., 760
F.3d 223, 225 (2d Cir. 2014) (race discrimination).
To prove a prima facie case of disparate treatment
discrimination under the McDonnell-Douglas standard, a plaintiff
“must adduce sufficient evidence to permit a reasonable jury to
find that (1) she is a member of a protected class, (2) she was
qualified for the job at issue, (3) she was subjected to an

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adverse employment action, and (4) the circumstances of that
adverse action give rise to an inference of discrimination based
on her class membership.”
76, 88 (2d Cir. 2019).

Bentley v. AutoZoners, LLC, 935 F.3d

If a prima facie showing is made, “the

burden shifts to the defendant to articulate some legitimate,
nondiscriminatory reason for its action.”
omitted).

Id. (citation

Finally, “if the employer carries that burden, a

plaintiff must submit admissible evidence from which a finder of
fact could infer that the defendant’s employment decision was
more likely than not based in whole or in part on
discrimination.”

Menaker v. Hofstra Univ., 935 F.3d 20, 30 (2d

Cir. 2019).
Pinkston-Shay has met her burden of showing three of the
four elements of a prima facie case of intentional
discrimination.
class.

Her race and gender place her in a protected

She suffered an adverse action when she was not promoted

to sergeant and she was qualified for that promotion to the
extent of having taken the Exam and being placed on the 2014
List.

Pinkston-Shay has not met her burden, however, of showing

that the failure to promote her in 2018 occurred under
circumstances giving rise to an inference of discrimination.
The MTA has a long-established practice of promoting
officers to sergeant based on Exam results.

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The promotions are

made from the most recent List and are made in order of Exam
results, as determined by a third-party vendor.

The process to

create the 2018 List began in May 2016, long before PinkstonShay was in contention for a promotion.

On November 6, 2017,

the MTA announced that the 2018 Exam would be given.

On

December 22, 2017, the final round of promotions was made from
the 2014 List.

The 2018 Exam took place on February 4, 2018.

Pinkston-Shay, who had taken the 2014 Exam, did not take the
2018 Exam.

The 2018 List was issued on June 4, and all

promotions thereafter were made from the 2018 List.

Because

Pinkston-Shay was not on the 2018 List, the MTA did not consider
her for promotion after the 2018 List was published.
This timeline and these well-established practices do not
give rise to an inference of discrimination.

Pinkston-Shay

alleges that the MTA “manipulate[ed] the promotional lists to
avoid having a fair share of African-American and female
officers become Sergeants,” but she has produced no evidence to
support that claim.

She has not for instance, produced evidence

that the MTA departed from its regular practices in order to
restrict African-American and female candidates from advancing
to the rank of sergeant.

Pinkston-Shay has not met her burden

to establish a prima facie case of race or sex discrimination
under the McDonnell-Douglas framework.

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Even if she had met that burden, the MTA has shown that it
had a legitimate, non-discriminatory reason for not promoting
the plaintiff to sergeant.

Although she was on the 2014 List,

her ranking on that List did not qualify her for the last round
of promotions made from that List.

She did not take the 2018

Exam and therefore was not on the 2018 List and eligible for
promotion when the MTA made its next round of promotions.

The

plaintiff has not offered any evidence to raise a question of
fact that the failure to promote her was due in whole or in part
to intentional discrimination against her based on her race or
sex.
Pinkston-Shay principally makes two arguments in opposition
to the defendants’ motion for summary judgment.

She does not,

however, offer any evidence, either direct or circumstantial,
that anyone in the MTA acted with animus against her.
First, Pinkston-Shay points to the composition of the 2014
List.

She contends that most African-American and female

candidates “were in the lower half” and that the MTA stopped
using the 2014 List just before several African-American and
female candidates would have been eligible for promotion.
Pinkston-Shay has denied, however, that she intends through this
lawsuit to attack either the fairness of the Exam or the ranking
of individuals based on their Exam results.

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She has certainly

offered no evidence of any bias in either the creation of the
Exam or the scoring of the Exam results.

Moreover, she has

offered no evidence from which a jury could conclude that the
MTA should have broken with its well-established practice and
used the 2014 List for promotions after the 2018 Exam had been
given, much less that it acted with discriminatory intent in not
doing so.
Next, Pinkston-Shay argues that African-Americans and
females are underrepresented in the ranks of MTA sergeants.
Even on the assumption that this is so, Pinkston-Shay has not
offered evidence that the failure to promote her was due to
intentional gender or race discrimination against her.

As

already noted, she does not challenge the fairness of the Exam
and has not shown that the practice of promoting from the most
recent List is discriminatory or intended to be discriminatory.
II.

Disparate Impact
Pinkston-Shay also claims that the MTAPD should be held

liable for Title VII race and sex discrimination under a
disparate impact theory of liability.

The Supreme Court has

construed Title VII to prohibit “‘not only overt discrimination
but also practices that are fair in form, but discriminatory in
operation’ -- that is, practices that have a ‘disparate
impact.’”

Mandala v. NTT Data, Inc., 975 F.3d 202, 207 (2d Cir.

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2020) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431
(1971)).
Disparate impact claims “follow a three-part analysis
involving shifting evidentiary burdens.”

Id.

The plaintiff

“bears the initial burden of [making] a prima facie showing of
disparate impact.”

Id.

In order to make such a showing, the

plaintiff must “(1) identify a specific employment practice or
policy; (2) demonstrate that a disparity exists; and (3)
establish a causal relationship between the two.”

Id.

Disparate impact claims differ from disparate treatment
claims in that they “do[] not require the plaintiff to show that
the defendant intended to discriminate against a particular
group.”

Id.

Rather, “a prima facie violation may be

established by statistical evidence showing that an employment
practice has the effect of denying members of a protected class
equal access to employment opportunities.”

M.O.C.H.A. Soc’y,

Inc. v. City of Buffalo, 689 F.3d 263, 273 (2d Cir. 2012).

“At

the prima facie stage, a plaintiff’s statistical analysis must
[demonstrate] that the disparity is substantial or significant,
and must be of a kind and degree sufficient to reveal a causal
relationship between the challenged practice and the disparity.”
Mandala, 975 F.3d at 209.

“[T]he statistical analysis must, at

the very least, focus on the disparity between appropriate

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comparator groups.

In other words, the statistical analysis

must reveal disparities between populations that are relevant to
the claim the plaintiff seeks to prove.”

Id. at 210.

If the plaintiff successfully makes out a prima facie
claim, “the defendant has two avenues of rebuttal.”
(citation omitted).

Id. at 208

If the defendant “undermine[s] the

plaintiff’s disparate impact or causal analysis,” then the
defendant prevails.

Id.

“Alternatively, the defendant can

concede that the identified policy has a disparate impact, but
nevertheless defend it as ‘job related for the position in
question and consistent with business necessity.’”
42 U.S.C. § 2000e–2(k)(1)(A)(i)).

Id. (quoting

If the defendant successfully

demonstrates the “business necessity of the challenged policy,”
“the burden then shifts back to the plaintiff, who has one last
chance to prove her case” by showing that “other methods exist
to further the defendant’s legitimate business interest without
a similarly undesirable . . . effect.”

Id. (citation omitted).

In her complaint, Pinkston-Shay identified the challenged
practice as the “manipulat[ion]” of the promotional lists to
avoid having a fair share of African-American and female
officers become Sergeants.

At her deposition, she clarified

that the challenged practice was the MTA’s decision “to switch”
from the 2014 List to the 2018 List in making promotion

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decisions in 2018.

Pinkston-Shay denied that her disparate

impact claim was addressed to either the creation or grading of
the Exams or the use of the Exams to make a List from which
promotions are made.

She testified:

Question: Do you have any issues with any of the
promotional exam results or the way it was scored?
Answer: No.
Question: Do you have any issue with any of the
promotional lists?
Answer: No.
Question: Is it fair to say that your claim in this
lawsuit is that the MTA’s decision to switch from the
2014 promotional list to the 2018 promotional list was
based on race and/or gender; is that fair to say?
Answer: Yes, yes.
Question: Do you have any other claims besides that
one?
Answer: No, not at all.
Pinkston-Shay has not met her burden of establishing a
prima facie claim of disparate impact discrimination.

She has

not demonstrated that the MTA’s practice of using the most
current List for promotion had a disparate impact generally or
that it had one in 2018.

Nor has she offered evidence that the

practice of using the most current List for promotions has
caused any disparity.

To make such a showing she would have to

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challenge either the Exam or the Lists as having a disparate
impact, and she has challenged neither.
Even if Pinkston-Shay had established a prima facie case of
disparate impact, she has failed to respond to the MTA’s reasons
for using the most current List for promotions.

The MTA denies

that there is any disparate impact from its use of the most
current List for promotions.

Nonetheless, it has also explained

that its use of the most current List is rooted in fairness to
the entire candidate pool.

Since it takes a period of about two

years to produce a new List from an Exam, and since the Exams
are only given on average every three or four years, the MTA has
chosen to promote those from the most current List.

Pinkston-

Shay has not engaged with the merits of this race- and genderneutral business decision.
Pinkston-Shay’s discussions of the ranking of AfricanAmericans and female candidates on the 2014 or 2018 Lists is
inapposite to the disparate impact claim she has formulated.
The rankings on the Lists might be relevant if she were
challenging the validity of the Exam or the process through
which the Exam results were graded, but she is not.

In

discussing the rankings, Pinkston-Shay is attempting to recast
her claim of disparate treatment as a disparate impact claim.

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Recognizing the difficulties she faces with her formulation
of a disparate impact claim, in her opposition brief PinkstonShay recasts the claim as a challenge to the “practice of rank
ordering the promotion list based upon the scores on the written
exam only.”

Pinkston-Shay did not identify this as her claim at

any prior point in this litigation and cannot alter her claim to
this extent at this late stage of the litigation.

Discovery has

closed, and Pinkston-Shay denied at her deposition that she was
challenging the use of the Lists, generated from Exam results,
for promotion decisions.
III. Supplemental Jurisdiction
Pinkston-Shay also brings a number of state law employment
discrimination claims.

A district court may decline to exercise

supplemental jurisdiction over a state law claim if the district
court “has dismissed all claims over which it has original
jurisdiction.”

28 U.S.C. § 1367(c)(3).

Once a court has

dismissed all federal claims, it must decide whether “the
traditional values of judicial economy, convenience, fairness,
and comity” counsel against the exercise of supplemental
jurisdiction.

Catzin v. Thank You & Good Luck Corp., 899 F.3d

77, 85 (2d Cir. 2018) (citation omitted).
In weighing these factors, the district court is aided
by the Supreme Court’s additional guidance in
[Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343
(1988),] that in the usual case in which all federal16

law claims are eliminated before trial, the balance of
factors will point toward declining to exercise
jurisdiction over the remaining state-law claims.
Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d
Cir. 2006).
The federal claims in this matter have all been resolved,
and judicial economy and comity therefore weigh in favor of the
dismissal of this action.

The defendant has urged the Court not

to exercise supplemental jurisdiction over the plaintiff’s state
law claims, and the plaintiff has not argued to the contrary.
Accordingly, the Court declines to exercise supplemental
jurisdiction over the plaintiff’s state law claims.
Conclusion
The defendant’s September 25, 2020 motion for summary
judgment on the plaintiff’s Title VII claims is granted.

The

Court declines to exercise supplemental jurisdiction over the
state law claims.

The Clerk of Court is directed to enter

judgment for the defendant on the complaint’s federal claims and
close the case.
Dated:

New York, New York
April 1, 2021
__________________________________
DENISE COTE
United States District Judge

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