Goodman v. Niagara Frontier Transportion/Metro

Filing 28

ORDER granting 6 Motion for Summary Judgment. Signed by Hon. H. Kenneth Schroeder, Jr on 12/2/2011. (KER) (Main Document 28 replaced on 12/2/2011) (KER).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LINDA GOODMAN,
Plaintiff

10-CV-0429Sr

v.
NIAGARA FRONTIER TRANSIT
METRO SYSTEM, INC.,
Defendant.

DECISION AND ORDER
In accordance with 28 U.S.C. § 636(c), the parties have consented to
have the undersigned conduct all further proceedings in this case, including entry of
final judgment. Dkt. #27.

Plaintiff commenced this action seeking damages pursuant to Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), alleging that she
was terminated from her employment because of her color.1 Dkt. #4.

Currently before the Court is defendant Niagara Frontier Transit Metro
System, Inc.’s (“NFT Metro’s”) motion for summary judgment. Dkt. #6. For the
following reasons, defendant’s motion is granted.

1

Although the com plaint does not state plaintiff’s color, plaintiff identifies herself as African
Am erican and black in other docum ents contained in the record before the court. Dkt. #22, p.5.

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BACKGROUND
Plaintiff commenced employment with NFT Metro as a full-time bus
operator on May 24, 2002. Dkt. #7, ¶ 1.

On March 14, 2008, plaintiff turned the bus she was driving left from
Church Street onto Lower Terrace Road (near the entrance to the Adams Mark Hotel),
lost control of her bus and ran into another bus which was parked on Lower Terrace
Road. Dkt. #7, ¶ 5. The accident was recorded on the surveillance cameras on board
each of the buses. Dkt. #9, ¶ 6. The driver of the bus plaintiff hit and a passenger on
the bus plaintiff was driving were transported to the hospital by ambulance. Dkt. #7,
¶ 6. The combined damage to the two buses exceeded $150,000.00. Dkt. #7, ¶ 6.

Pursuant to the collective bargaining agreement between the
Amalgamated Transit Union Local 1342 (“ATU Local 1342”), and NFT Metro, plaintiff’s
accident was reviewed by a five member Accident Review Committee composed of
three drivers who are members of ATU Local 1342 and two management
representatives. Dkt. #7, ¶ 8. The Accident Review Committee reviews the
circumstances of bus accidents in accordance with the terms of the Bus Accident
Reduction Program established pursuant to the collective bargaining process. Dkt. #7,
¶¶ 7-8. The Bus Accident Reduction Program assigns points to every preventable
accident in accordance with a scale which accounts for personal injury, dollar value of
property damage, factors outside of the operator’s control which may have contributed
to the accident, such as faulty equipment or weather conditions, and evidence of gross
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negligence by the operator. Dkt. #9, p.14. Depending on the number of points an
operator receives over the course of a twelve-month period, the operator may receive
additional instruction from a supervisor, be required to attend defensive driving classes,
or be subject to suspension or termination. Dkt. #9, p.15. An operator who accrues 12
points in a twelve-month period is terminated. Dkt. #9, p.15. Timothy Martin, Safety
Quality Assurance Coordinator for NFT Metro, affirms that since he became a
participant of the Accident Review Committee in 2005,
no driver who accumulated 12 or more points within a 12 month
period and thereby faced discharge under the Program was instead
given a less severe disciplinary action. Nor to date has the Union
been successful in obtaining the reinstatement of a driver who was
discharged according to the terms of the Program.
Dkt. #25, ¶ 9.

The Bus Accident Review Committee reviewed the circumstances of
plaintiff’s accident on April 10, 2008. Dkt. #9, ¶ 11. They reviewed the accident report
and the surveillance videos and heard from plaintiff. Dkt. #9, ¶ 11. The Bus Accident
Review Committee assessed plaintiff 10 points for being involved in an accident falling
into the highest category of seriousness and 2 points for gross negligence. Dkt. #9,
¶ 11. As a result of plaintiff’s accumulation of 13 points within a twelve-month period,2
plaintiff’s employment was terminated. Dkt. #7, ¶ 12. ATU Local 1342 filed a grievance
on plaintiff’s behalf, asserting that there was newly discovered evidence of a possible
defect in the steering mechanism that should have been considered by the Accident

2

Plaintiff was involved in 24 accidents during the course of her nearly 6-year tenure (including
part-tim e em ploym ent), with NFT Metro. Dkt. #22, pp. 8-10. Half of those accidents were deem ed nonpreventable; the other half were assigned no m ore than 1 point per accident. Dkt. #22, pp.8-10.

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Review Committee. Dkt. #7, ¶ 14; Dkt. #9, ¶ 14. The arbitrator determined that the
Accident Review Committee should decide whether or not to review it’s decision and
the Accident Review Committee subsequently determined that the newly discovered
evidence did not warrant further review. Dkt. #7, ¶¶ 15-16.

Plaintiff filed a complaint with the New York State Division of Human
Rights (“NYSDHR”), alleging that her termination was motivated by age, race and/or
sex. Dkt. #7, ¶ 17. The NYSDHR issued a Determination and Order after Investigation
finding no probable cause to believe that plaintiff had been discriminated against on the
basis of her age, sex and/or race, but that she was “involved in an accident and was
disciplined accordingly in the same fashion as all other employees.” Dkt. #9, p.36. The
Equal Employment Opportunity Commission adopted the findings of the NYSDHR and
issued a Dismissal and Notice of Suit Rights on February 18, 2010. Dkt. #22, p.1.

DISCUSSION AND ANALYSIS
NFT Metro argues that plaintiff’s termination was not an exercise of
management discretion but the result of a collectively bargained process setting
objective criteria for the discipline of operators involved in preventable accidents. Dkt.
#11, p.8.

Plaintiff contends that the review of her accident was rushed through the
Accident Review Committee and that the Accident Review Committee made its decision
without evidence suggesting mechanical problems with the bus. Dkt. #7 & Dkt. #22,
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p.5. Plaintiff also asserts that other employees involved in accidents retained their
employment, including a white male involved in a fatal bus accident; a woman who
drove into a bank; a woman charged with drunk driving; a black woman who hit the
back of a parked bus and a black woman who failed to activate the brake before exiting
a bus with passengers on board. Dkt. #7 & Dkt. #22, p.6. Plaintiff complains that
African Americans are terminated at a higher rate than other employees. Dkt. #22, p.5.

NFT Metro replies that the male employee allegedly involved in a fatal bus
accident was terminated after he tested positive for illegal drugs a second time, but
notes that personnel records for this individual do not indicate a fatal accident. Dkt.
#25, ¶¶ 5-6. With respect to the woman who allegedly drove into a bank, NFT Metro
affirms that this employee was involved in one preventable accident which was
assigned a point charge of 1. Dkt. #25, ¶ 7. With respect to the drunk driving incident,
NFT Metro affirms that this incident occurred while the employee was off duty and was
not subject to review under the Bus Accident Reduction Program. Dkt. #25, ¶ 8. NFT
Metro argues that the retention of black female operators allegedly involved in
accidents undermines plaintiff’s claim of discrimination against African Americans. Dkt.
#25, ¶ 9. NFT Metro also notes that more than half of it’s bus drivers are African
American. Dkt. #23, pp.3-4.

Summary Judgment Standard
Summary judgment is appropriate "if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
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there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c). “In reaching this determination, the
court must assess whether there are any material factual issues to be tried while
resolving ambiguities and drawing reasonable inferences against the moving party, and
must give extra latitude to a pro se plaintiff.” Thomas v. Irvin, 981 F. Supp. 794, 799
(W.D.N.Y. 1997) (internal citations omitted).

A fact is "material" only if it has some effect on the outcome of the suit.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see Catanzaro v. Weiden,
140 F.3d 91, 93 (2d Cir. 1998). A dispute regarding a material fact is genuine "if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248; See Bryant v. Maffucci, 923 F.2d 979 (2d Cir.), cert. denied,
502 U.S. 849 (1991).

Once the moving party has met its burden of ?demonstrating the absence
of a genuine issue of material fact, the nonmoving party must come forward with
enough evidence to support a jury verdict in its favor, and the motion will not be
defeated merely upon a <metaphysical doubt’ concerning the facts, or on the basis of
conjecture or surmise.” Bryant, 923 F.2d at 982. A party seeking to defeat a motion
for summary judgment
must do more than make broad factual allegations and
invoke the appropriate statute. The [party] must also show,
by affidavits or as otherwise provided in Rule 56 of the
Federal Rules of Civil Procedure, that there are specific
factual issues that can only be resolved at trial.
Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).
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Title VII of the Civil Rights Act
Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment
practice for an employer . . . to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1).

In the absence of direct evidence of discrimination, Title VII claims are
analyzed pursuant to the burden-shifting framework set forth in McDonnell Douglas
Corp. v. Green, and its progeny. 411 U.S. 792, 802 (1973). This analysis requires a
plaintiff to establish a prima facie case of discrimination by showing that: (1) she
belongs to a protected class; (2) she was qualified for the position; (3) she suffered an
adverse employment action; and (4) the circumstances of the adverse action give rise
to an inference of discrimination on the basis of the individual’s membership in that
class. Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003); Slattery v. Swiss
Reinsurance Am. Corp., 248 F.3d 87, 91-92 (2d Cir.), cert. denied, 534 U.S. 951
(2001); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000), cert. denied, 540
U.S. 811 (2003); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
The burden on the plaintiff at this stage of the analysis is de minimis. Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). Evidence of discrimination is not
required. James v. New York Racing Assoc., 233 F.3d 149, 153 (2d Cir. 2000).

If plaintiff meets this initial burden and establishes a prima facie case, a
rebuttable presumption of discrimination arises, and the burden shifts to the defendant

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to articulate a legitimate, non-discriminatory reason for the employment action. Id.; See
Burdine, 450 U.S. at 254. “Any such stated purpose is sufficient to satisfy the
defendant’s burden of production; the employer does not have to persuade the court
that the stated purpose was the actual reason for its decision.” Austin v. Ford Models,
Inc., 149 F.3d 148, 153 (2d Cir. 1998), abrogated on other grounds by Swierkiewicz v.
Sorema, N.A., 534 U.S. 506, 509 (2002).

If the employer carries this burden of production, the presumption raised
by the prima facie case is rebutted and “simply drops out of the picture.” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). At this point, the case “becomes like
any other case in that the plaintiff, in order to prevail, must have evidence from which
the factfinder can reasonably find the essential elements of the claim.” James, 233
F.3d at 154. Accordingly, in the context of a motion for summary judgment, the Court
must examine the entire record to determine whether the plaintiff could satisfy her
ultimate burden of persuading the trier of fact that the defendant intentionally
discriminated against her. Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000). The
plaintiff must produce not simply some evidence, but sufficient evidence to support a
rational finding that the legitimate, non-discriminatory reasons proffered by the
defendant were false, and that more likely than not discrimination was the real reason
for the employment action. Weinstock, 224 F.3d at 42.

Plaintiff has produced no evidence from which the Court can discern a
question of fact as to whether her color, or any other protected characteristic, played

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any part in the decision to terminate her employment with NFT Metro. See Brown v.
Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (“It is axiomatic that mistreatment at work,
whether through subjection to a hostile environment or through such concrete
deprivations as being fired or being denied a promotion, is actionable under Title VII
only when it occurs because of an employee’s sex, or other protected characteristic.”).
To the contrary, the record before the Court demonstrates that plaintiff’s termination
was caused by the Accident Review Committee’s determination to assess plaintiff 13
points following consideration of two preventable accidents over the course of twelve
months, one of which resulted in the hospitalization of a passenger and another
operator and caused more than $150,000.00 in damage to the two buses. See Collins
v. New York City Transit Authority, 305 F.3d 113, 119 (2d Cir. 2002) (termination based
on determination of independent, neutral and unbiased process established by
collective bargaining agreement “highly probative of the absence of discriminatory intent
in that termination.”).

Plaintiff has also failed to raise a question of fact as to whether the
individuals alleged to have received more favorable treatment were similarly situated to
plaintiff. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (A showing
of disparate treatment – that is, a showing that the employer treated plaintiff less
favorably than a similar situated employee outside his protected group – is a recognized
method of raising an inference of discrimination for purposes of making out a prima
facie case.); Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (plaintiff may
raise inference of discrimination by demonstrating that the employer treated her less
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favorably than a similarly situated employee outside her protected group). The
individuals named by plaintiff include a white male terminated after two positive drug
tests, a white woman allegedly charged with DWI while off duty, and a woman involved
in an a minor property damage accident without personal injury, none of which are
remotely similar to plaintiff’s circumstance. Moreover, plaintiff’s contention that two
black women retained their employment despite being involved in bus accidents does
not support her argument that black employees are terminated in circumstances in
which white employees are retained.

CONCLUSION
For the foregoing reasons, it is hereby ORDERED that defendant’s motion
for summary judgment (Dkt. #6), is GRANTED.

The Clerk of the Court is directed to enter judgment in favor of defendant.

SO ORDERED.

DATED:

Buffalo, New York
December 2, 2011

s/ H. Kenneth Schroeder, Jr.
H. KENNETH SCHROEDER, JR.
United States Magistrate Judge

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