Kellman v. Metro. Transp. Auth.

Decision Date26 March 2014
Docket NumberNo. 07 Civ. 3561(DAB).,07 Civ. 3561(DAB).
Citation8 F.Supp.3d 351
CourtU.S. District Court — Southern District of New York
PartiesNzingha M. KELLMAN, Plaintiff, v. METROPOLITAN TRANSPORTATION AUTHORITY, Elliot Sander, Wiliam Morange, Kevin McConville, and Terrance Culhane, Defendants.


Motion granted in part, denied in part, and decision reserved in part. Deanna R. Waldron, Steven J. Hyman, Janet Cohn Neschis, Jonathan Robert Jeremias, McLaughlin & Stern, LLP, Norman H. Siegel, Siegel Teitelbaum & Evans LLP, Rachel Dara Nicotra, Law Office of Rachel Nicotra, New York, NY, for Plaintiff.

Craig Robert Benson, Stephen Andrew Fuchs, Elias Jay Kahn, Littler Mendelson, P.C., New York, NY, Keith Jay Rosenblatt, Littler, Mendelsohn, P.C., Newark, NJ, for Defendants.


DEBORAH A. BATTS, District Judge.

Plaintiff Nzingha M. Kellman (Plaintiff or “Kellman”), an African–American female, together with eight African–American plaintiffs and one Hispanic plaintiff, all of whom are current or former employees of the Metropolitan Transportation Authority (MTA) Police Department (“MTA PD”), commenced this action against the MTA and four MTA executive officers (collectively, Defendants), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”), and 42 U.S.C. §§ 1981 and 1983. Plaintiff maintains that MTA discriminated against her on the basis of her race and sex by denying her promotions and training, subjecting her to a hostile work environment, and engaging in a pattern or practice of racial discrimination, and retaliated against her for complaining to the MTA Office of Civil Rights (“OCR”) and the New York State Division of Human Rights (“SDHR”) about alleged discrimination. Defendants now move pursuant to Fed.R.Civ.P. 56 for Summary Judgment on each of Plaintiff's claims.1

For the reasons set forth herein, Defendants' Motion for Summary Judgment is granted in part, denied in part, and the Court reserves decision in part.

A. The Parties

Defendant MTA is a New York State public benefit corporation that provides public transportation services to the Greater New York City area. Defendant Elliot Sander served as the Executive Director and Chief Executive Officer of MTA from January 1, 2007 to May 7, 2009. Defendant William Morange was MTA Director of Security from July 2003 to December 2010. Defendant Kevin McConville was the Chief of MTA PD from October 2005 to January 2008. Defendant Terrance Culhane was an Assistant Deputy Chief of MTA PD from 2004 to July 2010.

Plaintiff Nzingha M. Kellman joined MTA PD as a police officer on July 6, 1999. (Pl.'s 56.1 Stmt. ¶ A.)

B. Plaintiff's Employment with MTA PD

Plaintiff was first assigned to the Communications Unit and in 2001 transferred to District 3. (Pl.'s 56.1 Stmt. ¶¶ C–D.) She alleges that she experienced race- and sex-based harassment during both assignments. ( Id.) For instance, MTA PD members barred Kellman from going to the bathroom until male officers finished using the facilities, called her a “fucking bitch” and a “skell,” physically threatened her, wrote graffiti on her locker, and ordered her to deviate from her MTA-approved, pregnancy-related desk duty. ( Id. ¶¶ E–K; Defs.' Resp. Pl.'s 56.1 Stmt. ¶ K.) MTA did not investigate Plaintiff's complaints of harassment. (Pl.'s 56.1 Stmt. ¶¶ G, EEE.)

In October 2003, Plaintiff was promoted to Sergeant, a nondiscretionary promotion resulting from her performance on the Sergeant's examination. ( Id. ¶ N.) She was assigned to District 5—Grand Central in October 2003, where she was supervised by Deputy Inspector Robert Terrett and Inspector Thomas Dunn. ( Id.) At Grand Central, Kellman was a patrol sergeant, and as such, was responsible for supervising patrol officers who reported from Grand Central. ( Id.; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 7R.)

C. Plaintiff's Requests for Training

MTA's Training Bureau disseminates information about discretionary training courses to district commanding officers. (Pl.'s 56.1 Stmt. ¶ O.) Commanding officers may recommend particular members of their command for training courses, regardless of whether those members request the training. ( Id.; Defs.' Resp. Pl.'s 56.1 Stmt. ¶ O; Terrett Dep. 152:22–25.) Alternatively, MTA PD members may request that their supervisors assign them to particular training courses. (Defs.' Resp. Pl.'s 56.1 Stmt. ¶ P.) However, no operational orders announce training opportunities to MTA PD members, and Kellman typically learned about discretionary training courses only after viewing Personnel Orders assigning other MTA PD members to those courses. (Pl.'s 56.1 Stmt. ¶¶ P–Q.) Defendants note that MTA PD members can look at other agencies' websites to learn about training courses offered by those agencies, and that since 2007, MTA has emailed notices about trainings offered by the Department of Criminal Justice Services to MTA PD members. (Defs.' Resp. Pl.'s 56.1 Stmt. ¶¶ O–P.)

Plaintiff repeatedly requested that Defendants consider her for all future training courses. (Pl.'s 56.1 Stmt. ¶¶ S–T.) In March 2004, Kellman requested assignment to Executive Protection Training after viewing a Personnel Order assigning others to the Training.2 ( Id. ¶ EE.) Terrett, Plaintiff's direct supervisor, denied her request, stating that Executive Protection Training was specialized training given only to members of specialized units. (Kellman Decl. ¶ 15.) In June 2004, a Personnel Order stated that MTA sought abstracts 3 for promotion to Detective Sergeant, particularly from members with Executive Protection Training. (Jeremias Decl. Ex. AA.) After seeing the Personnel Order, Plaintiff again requested assignment to Executive Protection Training, and Terrett told her, “You don't need the training. It's specialized.” (Pl.'s 56.1 Stmt. ¶ EE; Kellman Dep. 226:4–5.) On May 28, 2011, after seeing a Personnel Order assigning employees to a June 2, 2011 Executive Protection Training, Plaintiff emailed Captain John Berlingieri to request assignment to the Training. (Jeremias Decl. Ex. KKK, at P06326.) Berlingieri's response, which he did not send until June 6, 2011, stated, “Should you see this class again please let me know and I will forward it up the chain of command for their consideration.” ( Id. at P06324.)

According to the record, four of the sixteen employees who received Executive Protection Training after the 1998 formation of MTA PD 4 were African American and two were women. (Barreto Dep. 92:2–16; Fuchs Decl. Ex. 21; Jeremias Decl. Ex. T; Jeremias Decl. Ex. KKK, at P06335; Urquhart Dep. 176:4–8.) When they received the Training, all sixteen were detectives or assigned to ICTF, a unit specializing in counterterrorism.5 (Defs.' 56.1 Stmt. ¶ 36; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 36R; Defs.' Reply Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 36; Pl.'s 56.1 Stmt. ¶ LL; Barreto Decl. ¶¶ 3, 5–6; Barreto Dep. 46:2–6, 91:7–92:10; Fuchs Reply Decl. Ex. 21; Jeremias Decl. Ex. T; Jeremias Decl. Ex. KKK, at P06335; Urquhart Dep. 176:4–8.) Wilfredo Barreto, an Executive Protection Unit supervisor, affirms that when fulltime members of the Executive Protection Unit are unavailable to perform executive protection duties, other MTA PD detectives are asked to do executive protection duties. (Barreto Decl. ¶ 2; Barreto Dep. 81:10–24, 132:8–19.) A larger group of detectives and/or ICTF members provides another type of executive protection, site security at high-risk events. (Barreto Reply Decl. ¶ 2; Barreto Dep. 130:9–132:7.) MTA PD began providing the Training to ICTF members in 2004, allegedly so that they would be better prepared to perform executive protection duties. (Barreto Reply Decl. ¶ 5.) In 2008, MTA PD began providing the Training to non-ICTF detectives so that they too would be better able to perform executive protection duties. (Barreto Reply Dec. ¶ 5; Barreto Dep. 124:9–19, 130:21–132:19.)

In July 2005, after viewing a Personnel Order assigning members to Land Transportation Antiterrorism Training, Plaintiff asked to attend the Training. (Pl.'s 56.1 Stmt. ¶ S; Jeremias Decl. Ex. U.) Her request was denied. (Pl.'s 56.1 Stmt. ¶ S.) Defendants allege that they denied the Training because it was not relevant to Kellman's duties or within MTA's needs. (Defs.' 56.1 Stmt. ¶ 40.) Terrett, however, states that he denied Plaintiff's request because “it would have created a scheduling problem, leaving [Grand Central] with one less Patrol Sergeant than was normally scheduled.” (Terrett Reply Decl. ¶ 5.) Terrett did not supervise any of the seven members selected for the training. ( Id.) Of those seven, one was an African American man and one was an African American woman. (Defs.' 56.1 Stmt. ¶ 37.)

Also in 2005, Plaintiff requested assignment to Incident Command Systems (“ICS”) Training, and her request was denied. (Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 38R.) The Parties dispute whether Plaintiff made her request before or after the publication of a Personnel Order assigning three MTA PD members to an October 2005 ICS Training. (Kellman Decl. ¶ 18; Terrett Decl. ¶ 6.) Defendants initially alleged that Plaintiff was denied ICS Training because the Training was not required for performance of her duties and was not within MTA's needs. (Defs.' 56.1 Stmt. ¶ 40.) In his Reply Declaration, however, Terrett alleges that he denied Plaintiff the Training because Plaintiff requested it too late for him to arrange for her to attend. (Terrett Decl. ¶ 6; see Jeremias Decl. Ex. W.)

Of the three members assigned to the October 2005 ICS Training, two were Caucasian patrol sergeants and one was an African American lieutenant. (Defs.' 56.1 Stmt. ¶ 38; Pl.'s Resp. Defs.' 56.1 Stmt. ¶ 38R.) One of the assigned sergeants, Rosalie Grascia, also worked in District 5—Grand Central and was supervised by Terrett. (Kellman Decl. ¶ 18.) The assigned lieutenant, co-plaintiff Bryan Henry,...

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