Kitani v. N.Y. City Transit
| Decision Date | 24 March 2022 |
| Docket Number | 19-CV-1043 (VSB) |
| Court | U.S. District Court — Southern District of New York |
| Parties | MIKIKO KITANI, Plaintiff, v. NEW YORK CITY TRANSIT et al., Defendants. |
Mikiko Kitani Brooklyn, New York Pro se Plaintiff.
Daniel Christian Doeschner Robert J. Burzichelli Greenberg Burzichelli Greenberg P.C. Lake Success, New York Steve S Efron Renee Lucille Cyr Steve S. Efron, Attorney at Law Counsels for Defendants.
Before me are (1) the motion to dismiss Plaintiff Mikiko Kitani's second amended complaint, (the “Second Amended Complaint” or “SAC, ” Doc. 54) filed by Defendants New York City Transit (the “Transit” or “NYCT”), Andy Byford Craig Costa, Anthony Cassella, and Pierre Syldor (“Individual Defendants” and together with Transit, the “Transit Defendants”); and (2) the motion to dismiss filed by Defendant District Council 37 Local 3652 (“Local 3652”). Because Plaintiff's claims are either time-barred or fail to plausibly allege violations of the law, the motions to dismiss of the Transit Defendants and Local 3652 are GRANTED.
1. Factual Background[1]
Plaintiff is a former employee of Transit and a member of Local 3652. (SAC ¶ 83, 84.) She suffers from chronic migraine disease. (Id. ¶ 82.) She began working at Transit as a Permanent Civil Engineer Level I on or about September 3, 2013, (id. ¶ 83), and was the only female employee in her “immediate unit, ” Brooklyn Maintenance of Way (“Brooklyn MOW”), (id. ¶¶ 94, 112). This case arises from Plaintiff's employment at Transit and Local 3652's refusal to represent her in grievance proceedings.
In 2014, Plaintiff filed her first internal complaint with the EEO office at Transit, (id. ¶ 111), alleging gender/sex discrimination based on “her then-supervisor's abusive acts and discriminatory employment practices, ” (id. ¶ 110); she later cross-filed the complaint with the New York State Division of Human Rights (“NYSDHR”) and the United States Equal Employment Opportunity Commission “EEOC” (“EEOC”), (id. ¶ 114). The EEO complaint was later closed “with no specific reason, ” (id. ¶ 114) and the NYSDHR case was also closed upon Plaintiff's attorney's request, (id. ¶ 115). Plaintiff received a “Notice of Right to Sue” from the EEOC dated October 29, 2015. (Id. ¶ 116.) Thereafter, from late 2014 to September 2019, Plaintiff was subjected to various acts of discrimination, hostility, and retaliation by the Transit and its employees, (see generally SAC), particularly her supervisors at Brooklyn MOW- Anthony Casella, an Assistant Chief Officer, (id. ¶ 73), Pierre A. Syldor, a Senior Director, (id. ¶ 77), and Craig Costa, a Director in the Department of Labor Relations at Transit, (id. ¶ 69).
Plaintiff was denied opportunities in the field work and overtime assignments from December 2015 to October 2016, (id. ¶¶ 120, 130, 157), notwithstanding that these assignments were consistent with Plaintiff's job title and were regularly assigned to her male coworkers, (id. ¶ 130). Instead, Plaintiff was frequently assigned out-of-title work.[2] (Id. ¶ 136.) She was also “paid lower wages and benefits than her male comparators for jobs involving equal work, skill, and responsibility.” (Id. ¶ 195.) In October 2016, Transit “suddenly and temporarily” resumed the overtime tour assignments to Plaintiff, but Transit did so while knowing that “due to [Plaintiff's] own serious health conditions . . . she could not work any overnight tours in addition to her regular daytime tours.” (Id. ¶ 157.)
Moreover, Costa, Casella and Syldor constantly treated Plaintiff with hostility. Costa forced Plaintiff to perform overnight assignments despite her medical conditions, and told her to “get sick and take sick leaves after.” (Id. ¶ 161.) On another occasion, Casella told Plaintiff, “with a hostile tone of voice, ” that she was getting less favorable treatments because she was “special.” (Id. ¶ 206.) Syldor would refuse to speak with Plaintiff or say greetings. (Id. ¶ 135.) Chun W. Cho, the former senior director at Brooklyn MOW, once told Plaintiff that “no one wanted her at the Brooklyn MOW.” (Id. ¶ 120.) “[I]ntimidated by . . . [the] open dislike” displayed by Plaintiff's supervisors, “her peers began avoiding Plaintiff” and “speaking to her in a whisper and cut short any friendly conversations with her.” (Id. ¶ 211.)
During her years employed by Transit, Plaintiff applied for and was denied promotions while Transit regularly promoted her male comparators. Specifically, Transit promoted Gregory P. Neis, a male employee who took “Exam 7012, an open-competitive examination” and ranked at 739 out of the 788 eligible examinees. (Id. ¶ 177.) On the other hand, Plaintiff took “Exam 7516, a promotional examination, ” ranked at 178 out of the 662 eligible examinees, but was never promoted.[3] (Id. ¶ 178.) Transit also denied Plaintiff (1) opportunities for training, (id. ¶¶ 132, 155); (2) reimbursement for her Professional Engineer licensure renewal fee, (id. ¶ 156); and (3) the Transit-issued iPhone device, (id. ¶ 133); in contrast, her male coworkers were provided iPhones and training, (id. ¶¶ 132-33). Moreover, Transit refused to approve and pay Plaintiff for (1) overtime, (id. ¶ 127); (2) earned vacation leave (id. ¶ 152); (3) bereavement leave, (id. ¶ 154); and (4) holiday benefits, (id. ¶ 151). Transit further failed to “compensate[ her] fully” when Plaintiff was suspended from January 2017 to March 2018. (Id. ¶ 190).
In addition, Transit repeatedly interfered with and attempted to force Plaintiff not to use leave to which she was entitled under the Family Medical Leave Act (“FMLA”), despite her approved FMLA status. Transit, including Costa, Casella and Syldor, falsely accused Plaintiff of “FMLA abuse, bereavement abuse, FMLA expiration and exhaustion, sick leave fraud, and later disciplined against her.” (Id. ¶ 174.) The discipline led to Plaintiff's suspension for fifteen months. (Id. ¶ 185.) During the suspension, Plaintiff was not assigned any work hours, such that she was not able to meet the FMLA eligibility requirement of 1, 250 worked hours, thus rendering her ineligible for FMLA leave for the year 2018. (Id. ¶ 193.)
Further, she was forced to report to the MTA-NYCT Medical Assessment Center (“MAC”), (id. ¶¶ 181, 201), to submit blood and urine laboratory tests, (id. ¶ 201), although none of her male coworkers were subject to this treatment, (id. ¶¶ 201-03). After MAC placed Plaintiff on a “restricted duty, ” Transit sent her a memorandum, which, “without any explanation[, ] changed the terms, conditions, and privileges of her employment, ” and forced Plaintiff to sign it. (Id. ¶ 205.) Thereafter, if Plaintiff remained at her workplace after 4 p.m., she would receive “reprimand emails from Casella and Syldor, ” (id. ¶ 207), while her male coworkers were allowed to stay after 4 p.m. without consequences, (id. ¶ 208). In June 2018, Transit placed Plaintiff on a “NYCT Chronic Sick List; changed the terms, conditions, and privileges of her employment with NYCT; attempted to force her to sign the memo; and then during the coming year 2018 and year 2019, the Defendants . . . kept resending the memo and harassed her.” (Id. ¶¶ 216.) The “NYCT Chronic Sick List is reserved for employees who have excessive unexcused absences, [i.e.] who are suspected of abusing sick leave benefits.” (Id. ¶ 217.) Her supervisors refused to remove Plaintiff from the list despite that Plaintiff presented “doctor's lines” showing that she should not be placed on the list. (Id. ¶ 219.) Moreover, while the “NYCT Chronic Sick List” requires that employees submit “doctor's lines” for every sick leave, (id. ¶ 217), Transit continuously refused to process the “doctor's lines” submitted by Plaintiff “either for minimal errors that could be corrected or for no reason at all, ” and then denied her requests for sick leave, (id. ¶¶ 222-26). On several occasions, Transit attempted to “obtain [Plaintiff's] private medical records without authorization” by calling her physicians. (Id. ¶¶ 222-26, 235.)
Starting in October 2016, Transit began arbitrarily changing Plaintiff's past timesheet records, some of which dated back to 2015, such that the times she had worked and the vacations she had earned were all changed to “NO PAY.” (Id. ¶ 163.) They also “subtract[ed] monies from Plaintiff's payrolls, ” which affected her pension. (Id. ¶ 166.)
In February 2019, Transit initiated a second disciplinary charge against Plaintiff after Plaintiff brought this instant action. (Id. ¶¶ 232-33).
Throughout the years, Plaintiff reported and complained internally at Transit about these discriminatory, hostile and retaliatory acts, (id. ¶¶ 121-23, 137, 215); however, no corrective actions were ever taken, (id).
Plaintiff also complained to her union, Local 3652, about various discriminatory, hostile, and retaliatory acts spanning numerous occasions. (Id. ¶¶ 124, 150, 165, 167, 180, 189, 192, 198, 225.) In May 2016, Local 3652 filed a grievance on behalf of Plaintiff concerning the out-of-title work assignments given to her. (Id. ¶ 137.) Costa determined that Plaintiff was assigned work consistent with her title. (Id. ¶ 138.) When Plaintiff sought to appeal this decision by asking Local 3652 to file a “STEP 2” grievance, Local 3652 refused. (Id. ¶ 139.) When Plaintiff sought to file a “STEP 2” herself, Casella informed Plaintiff that she must be represented by her union. (Id.) Consequently, Plaintiff was not able to pursue her grievance. This is the only grievance Local 3652 filed for Plaintiff in response to her requests.
In July 2019, Plaintiff submitted a request for an unpaid leave of absence, (id. ¶ 236), and in September...
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