Peterson v. Long Island Railroad Company, No. 1:2010cv00480 - Document 34 (E.D.N.Y. 2012)
Court Description: ORDER granting 20 Motion for Summary Judgment. Ordered by Judge I. Leo Glasser on 6/19/2012. (Green, Dana)
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Peterson v. Long Island Railroad Company Doc. 34 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ------------------------------------------------------x MICHAEL K. PETERSON, Plaintiff, Mem orandum an d Order 10 Civ. 480 - against LONG ISLAND RAILROAD COMPANY Defendant. ------------------------------------------------------x GLASSER, United States District J udge: Plaintiff Michael K. Peterson (“Peterson” or “plaintiff”) brought this action against his form er em ployer, Long Island Rail Road Com pany (“LIRR” or “defendant”), alleging retaliation in violation of the Fam ily and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. §§ 260 1 et seq., and race-based em ploym ent discrim ination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 20 0 0 e et seq., The New York State Hum an Rights Law (“NYSHRL”), N.Y. Exec. Law § 296, et seq. (McKinney 20 10 ), and the New York City Hum an Rights Law (“NYCHRL”), N.Y.C. Adm in. Code § 8 -50 2. Peterson also alleges intentional infliction of em otional distress under New York State Law. Before the Court is defendant’s m otion for sum m ary judgm ent, pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, defendant’s m otion is GRANTED. BACKGROU N D The following facts are undisputed unless otherwise noted. 1 Peterson, an African-Am erican m ale, worked as an Electrician for the LIRR in the Departm ent of 1 Defendant urges the Court to deem adm itted all statem ents contained in Defendant’s Statem ent Pursuant to Local Rule 56.1 (“Def.’s R. 56.1”) on the grounds that Plaintiff’s Counter1 Dockets.Justia.com Engineering for approxim ately 11 years. He was represented by the International Brotherhood of Electrical Workers, Local 589 (“IBEW”), pursuant to a Collective Bargain ing Agreem ent between LIRR and IBEW. At all tim es relevant to his Com plaint Peterson worked on Gang # 40 , under the direct supervision of Gang Forem an J erry Cum m ings (“Cum m ings”). Cum m ings’ superior was Electrical Supervisor Vito Dorsi (“Dorsi”). Dorsi was responsible for the electrical facilities on the LIRR and oversaw 26 workm en, divided into four work crews or “gangs”, including Gang # 40 . Declaration of Priscilla Lundin dated Novem ber 11, 20 11 (“Lundin Decl.”) Ex. E (“Dorsi Dep.”), at 15. On May 10 , 20 0 7, Peterson requested interm ittent FMLA leave in order to care for his wife, who suffers from hypertension. Lundin Decl. Ex. N. This request was granted for the twelve-m onth period of J uly 1, 20 0 7 to J une 30 , 20 0 8 . See id. Ex. O. During that period, Steven Daleo (“Daleo”), Chief Engin eer, Planning & Adm in istration, wrote to Peterson twice, updating him on the status of his FMLA leave. By a letter dated March 17, 20 0 8, Daleo notified Peterson that as of March 11, 20 0 8, he had only 48 hours of FMLA leave rem ain ing from his 480 hour entitlem ent. Lundin Decl. Ex. P. By a letter dated May 20 , 20 0 8, Daleo notified Peterson that as of April 21, 20 0 8, he had exhausted his FMLA leave. Lundin Decl. Ex. Q. Statem ent Pursuant to Local Rule 56.1 (“Pl.’s R. 56.1”) is deficient in num erous respects. Failure to comply with Local Rule 56.1 perm its a court to consider the facts at issue undisputed for the purposes of a sum m ary judgm ent motion. See Fed. R. Civ. P. 56(e)(2); Local Civil Rule 56.1(c). The Court declines to do so. See Taylor & Fulton Packing, LLC v. Marco Int’l Foods, LLC, No. 0 9 Civ. 2614 (ILG), 20 11 WL 6329194, at *4 n.2 (E.D.N.Y. Dec. 16, 20 11) (noting “the Court has broad discretion to overlook defendants’ failure to file a Rule 56.1 statem ent and m ay consider other adm issible evidence subm itted in opposition” (internal citation om itted)). However, specific statem ents in defendant’s Rule 56.1 statem ent will be deem ed adm itted if properly supported with adm issible evidence and if plaintiff has failed to provide evidentiary support in opposition. See id. at *4 (collecting cases). 2 I. H aras s m e n t For seven m onths, Peterson took interm ittent FMLA leave without incident. However, Peterson alleges that beginning in March 20 0 8 and ending with his suspension from service on May 14, 20 0 8, LIRR subjected him to harassm ent and disparate treatm ent, in cluding “excessive scrutiny” and “verbal harassm ent” in retaliation for his takin g FMLA leave. Com pl. ¶¶ 23-24; Lundin Decl. Ex. D (“Pl.’s Dep.”), at 21-22. Plain tiff alleges that he m ade verbal com plaints to his im m ediate supervisor, J erry Cum m ings (“Cum m ings”), about this harassm ent but he did not ask Cum m ings to take any action. See Lundin Decl. Ex. C, ¶ 14. Plaintiff did not m ake a com plaint to any other m em bers of m anagem ent or the Diversity Managem ent Departm ent, although plaintiff testified that he was aware of the LIRR’s Equal Em ploym ent Opportunity policies and the procedures for m aking a com plaint. See Pl.’s Dep. at 18-22. Specifically, plaintiff alleges three in cidents of harassm ent occurred: A. March 20 0 8 Plaintiff alleges that the harassm ent began in March 20 0 8 when he was working at Inwood Station, installing a new service lin e. Pl.’s Dep. at 24-25. Peterson had just returned from four weeks of paid vacation. Peterson alleges that Dorsi, his supervisor, approached him and said “Mike, so where were you? Did you have a big project or som ething on your vacation?” Id. at 25. Peterson ignored the question, told Dorsi that he was working on live wiring, and continued working. Id. At the end of the working day, Peterson com plained to Cum m ings that “I felt like I was being harassed because not only were [sic] I working on a live panel, he did not even ask – he cam e directly to m e and pointed out statem ents. No one else was – it’s not like he conversed with anyone else.” Id. at 27. Peterson testified that it was unusual for a Supervisor to speak directly 3 to him , rather than the Forem an. Id. at 28. Dorsi could not recall this conversation ever taking place. Dorsi Dep. at 41. B. April 8 , 20 0 8 On April 8, 20 0 8, Peterson was working at Floral Park Station when he received a call from his wife that she was ill and needed to be taken to the hospital. Pl.’s Dep. at 34. Pursuant to FMLA policy, Peterson called his forem an, Cum m ings, and inform ed him he needed to leave. Id. at 35. According to Peterson, he also called Dorsi, who approved Peterson leaving. However, Peterson alleges that Dorsi later visited Floral Park, looking for him , and told Cum m ings that he “didn’t like the way that went down.” Id. Peterson interpreted Dorsi’s statem ent as a form of harassm ent for his taking FMLA leave. Id. at 39. Defendant disputes plaintiff’s account. Dorsi testified that Peterson did not call him an d the first he heard of Peterson’s absen ce was when he visited the Floral Park Station on a routine site visit. Dorsi Dep. at 41-42. Cum m ings told him that Peterson had had som ething to eat that didn’t agree with his stom ach and had gone hom e sick. Id. at 44. Dorsi then called Peterson on his cell phone and Peterson told him he was not sick but taking FMLA leave to care for his wife. Id. at 46. Dorsi testified that he was angry with Cum m ings for failing to keep him inform ed and was concerned that either Cum m ings or Peterson had not been honest about the reasons for Peterson’s absen ce. Id. at 47, 51-52, 59. Peterson and Cum m ings are close friends: Peterson was the best m an at Cum m ings’ wedding. Pl.’s Dep. at 60 . Dorsi testified that he reprim anded Cum m ings for not reporting Peterson’s absence right away. Id. at 45, 48-49. The tim e sheet Cum m ings prepared for that day records Peterson as “Tim e Stopped at 1:30 p – sick (FMLA).” Lundin Decl. Ex. S. At deposition, plaintiff adm itted 4 that he im properly received paid sick leave for the tim e he took off on April 8 , 20 0 8 when, in fact, he was caring for his wife on FMLA tim e, which is unpaid. Pl.’s Dep. at 52-54; see also Lundin Ex. R (Em ployee Attendance Report in dicatin g plaintiff took sick leave on April 8 , 20 0 8 and FMLA leave for the following three days). C. May 14, 20 0 8 On May 14, 20 0 8, Peterson was working at Douglaston Station with his coworkers Dave William s and Malikee J oseph, both of whom are African-Am erican. Pl.’s Dep. at 40 -41. Dorsi visited the job site to check on the crew but did not see Peterson there. Dorsi asked William s and J oseph if Peterson was at work and they said that he was. Dorsi Dep. at 67-68. According to Peterson, Dorsi returned later in the afternoon and spoke with the m en again, asking if Peterson had been at work all day. Pl.’s Dep. at 43. When Peterson learned of this, he confronted Dorsi as Dorsi was leaving the job site. Both m en testified that Peterson began the conversation by asking Dorsi to speak to him directly an d not to ask his colleagues about his attendance. Peterson alleges Dorsi becam e angry and defensive, Pl.’s Dep. at 44; Dorsi alleges Peterson used foul language and began threatening him , Dorsi Dep. at 70 -71. It is undisputed that the argum ent escalated into shouting and William s and J oseph intervened, separating Peterson and Dorsi. Peterson testified that they “stepped in front of us.” Pl.’s Dep. at 45. Dorsi recalled they had to physically restrain Peterson an d that in the struggle William s fell to the ground and tore his jeans. Dorsi Dep. at 71-72. Peterson testified that at one point in the argum ent, he said “Well, I’m doing what I am supposed to. I’m here,” to which Dorsi responded, “You people abuse your FMLA.” Id. at 45. The only two em ployees in Gang # 40 taking FMLA leave were Peterson an d Cum m ings, both of whom are African-Am erican. Dorsi is Caucasian. Plaintiff 5 interpreted Dorsi’s statem ent to be a reference to his race. Com pl. ¶ 27. Dorsi denies ever m aking such a statem ent. Dorsi Dep. at 81. II. D is cip lin ary Pro ce e d in gs After the argum ent, Dorsi called his supervisor, J oseph Conway (“Conway”), to report the incident. Conway ordered everyone involved to report to his office in Bethpage. Lundin Decl. Ex. F, at 14. Dorsi, Cum m ings, Peterson, William s, J oseph, and Vinny Cuom o, an IBEW union representative, m et there. Id. at 14. After speaking with Dorsi and Cum m ings and taking written statem ents from William s and J oseph, Conway suspended Peterson from service. Pl.’s Dep. at 65; Lundin Decl. Ex. F, at 29, 36. Conway testified that based on his own observations of Peterson in Bethpage he believed him to be a threat to him self or others. Lundin Decl. Ex. F, at 31. A. First Disciplin ary Proceeding On May 16, 20 0 8 LIRR issued a Notice of Trial, charging Peterson with “Assaulting Two Em ployees; Threatening a Supervisor with Physical Harm ; Con duct Unbecom ing an Em ployee.” Com pl. ¶ 29; Lundin. Decl. Ex. U. Peterson’s disciplinary trial was held on J une 9 and J uly 10 , 20 0 8. Peterson attended the trial, represented by the IBEW, and had the opportunity to testify, call witnesses, cross exam ine LIRR’s witnesses, and m ake a closing statem ent. Pl.’s Dep. at 63. At the conclusion of the trial, the trial transcripts an d exhibits were forwarded to Steven Daleo, the reviewing officer, who found the evidence supported the charges and determ in ed term ination was appropriate. Daleo Decl. ¶ 31; Lundin Decl. Ex. X (Notice of Dism issal). On Septem ber 2, 20 0 8 , the IBEW appealed Peterson’s dism issal. Michael D. Chirillo (“Chirillo”), then-Director of Labor Relations (Adm inistration) for the LIRR, conducted an appeals hearing on Septem ber 30 , 20 0 8. See Declaration of Michael D. 6 Chirillo, dated Novem ber 10 , 20 11 (“Chirillo Decl.”) ¶¶ 8-10 . At the hearing, Chirillo proposed reducing Peterson’s dism issal to a 30 working day suspension and to pay Peterson 30 working days of back pay, if Peterson pled guilty. Id. ¶ 11. Peterson declin ed this offer on October 20 , 20 0 8. Id. ¶ 12. Two days later, Chirillo m odified Peterson’s dism issal to a tim e-out-of-service suspension of approxim ately 5 ½ m onths, reinstating his em ploym ent with LIRR. Id. ¶ 13. In accordance with the Collective Bargaining Agreem ent, Peterson was directed to subm it to a physical with the LIRR Medical Facility so that he could be approved to return to work. Id. ¶ 14. By a letter dated October 30 , 20 0 8 , LIRR instructed Peterson to attend a physical on Novem ber 6, 20 0 8. Lundin Decl. Ex. FF. Peterson failed to appear on that date. LIRR sent a second letter, dated Novem ber 10 , 20 0 8, directly ordering Peterson to attend a physical on Novem ber 20 , 20 0 8. Id. Ex. GG. In that letter, LIRR warned Peterson that failure to com ply with the order would result in trial charges. Peterson again failed to appear. By a letter dated Novem ber 25, 20 0 8, Peterson wrote to J oseph Conway, stating that, “[a]s a result of the continuing discrim inatory harassm ent and retaliation, I will not continue to work for the MTA. Unfortunately, m y com plaints have been ignored and I cannot continue at the MTA.” Lundin Decl. Ex. HH. Conway responded by letter, inform ing Peterson that this could not be considered a letter of resignation because LIRR requires em ployees to surrender their em ployee pass, keys, and all LIRR tools, together with a letter of resignation. Lundin Decl. Ex. J J . B. Second Disciplinary Proceeding On Novem ber 26, 20 11, LIRR issued a Notice of Trial, charging Peterson with “Insubordination; Failure to Report to the LIRR Medical Facility; Failure to Follow a 7 Direct Order; J ob Abandonm ent.” Lundin Decl. Ex. II. On J anuary 16, 20 0 9, LIRR held a disciplin ary trial. Id. Ex. KK (Transcript of Engineering Trial Case No. P0 8-0 86). Peterson did not attend the trial but was again represented by the IBEW. On February 11, 20 0 9, reviewing officer J en ine Mehm , Engingeering’s Senior Manager, Planning & Adm inistration, found that the trial record supported the charges and determ ined the appropriate discipline to be dism issal. Declaration of J enine Mehm dated Novem ber 10 , 20 11 ¶ 5; Lundin Decl. Ex. LL (Notice of Dism issal). Peterson appealed his February 11, 20 0 9 dism issal and Chirillo held an appeals hearing on April 7, 20 0 9. Chirillo Decl. ¶ 23. Peterson did not attend but was represented by the IBEW. Id. Chirillo affirm ed Peterson’s dism issal. Id. ¶ 27. III. Arbitratio n Following his second appeal, Peterson appealed to the Public Law Board, authorized by the National Mediation Board. See Lundin Decl. Ex. NN. On August 10 , 20 10 , an arbitral hearing was held, with subm issions m ade by LIRR and IBEW. Chirillo Decl. ¶ 28 . On October 16, 20 10 , the Public Law Board upheld LIRR’s dism issal of Peterson. Lundin Decl. Ex. QQ. IV. EEOC Co m p lain t By a com plaint dated October 28, 20 0 8, Peterson filed a claim with the New York State Division of Hum an Rights, alleging discrim ination based on his race. Lundin Decl. Ex. CC. As part of the dual-filing system , this com plaint was also filed with the Equal Em ploym ent Opportunity Com m ission (“EEOC”). The EEOC issued a “Notice of Right to Sue” letter to plaintiff on Novem ber 6, 20 0 9. Com pl. ¶ 10 ; Lundin Decl. Ex. DD. On February 3, 20 10 , plaintiff filed his Com plaint. 8 JU RISD ICTION This Court has original jurisdiction over plain tiff’s FMLA and Title VII claim s, claim s arising under federal law. The Court also has supplem ental jurisdiction over plaintiff’s state law discrim in ation claim s and com m on law claim for intentional infliction of em otional distress. Federal courts have supplem ental jurisdiction over “all other claim s that are so related to claim s in the action within such original jurisdiction that they form part of the sam e case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). A state law claim form s part of the sam e controversy if the state and federal claim “derive from a com m on nucleus of operative fact.” United Mine Workers v. Gibbs, 383 U.S. 715, 725, 8 6 S. Ct. 1130 , 16 L. Ed. 2d 218 (1966). Here, the parties and alleged events and injuries that are the grounds for plaintiff’s federal claim s are identical to those of plaintiff’s state law claim s. D ISCU SSION I. Su m m ary Ju d gm e n t Stan d ard Sum m ary judgm ent is appropriate “if the m ovant shows that there is no genuine dispute as to any m aterial fact and the m ovant is entitled to judgm ent as a m atter of law.” Fed. R. Civ. P. 56(a). As an initial m atter, the m oving party has the burden of dem onstrating that no genuine dispute of m aterial fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 10 6 S. Ct. 1348, 8 9 L. Ed. 2d 538 (1986). “A party asserting that a fact cannot be or is genuinely disputed m ust support the assertion by: (A) citing to particular parts of m aterials in the record, including depositions, docum ents, electronically stored inform ation, affidavits or declarations, 9 stipulations (including those m ade for purposes of the m otion only), adm issions, interrogatory answers, or other m aterials; or (B) showing that the m aterials cited do not establish the absen ce or presen ce of a genuine dispute, or that an adverse party cannot produce adm issible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Once the m oving party has m et this burden, the opposing party “‘m ust do m ore than sim ply show that there is som e m etaphysical doubt as to the m aterial facts. . . . [T]he nonm oving party m ust com e forward with specific facts showing that there is a genuine issue for trial.’” Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 20 0 2) (em phasis in original) (quoting Matsushita, 475 U.S. at 586– 87). “If a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact as required by Rule 56(c), the court m ay . . . grant sum m ary judgm ent if the m otion and supporting m aterials — including the facts considered undisputed — show that the m ovant is entitled to it.” Fed. R. Civ. P. 56(e). The Court is com pelled to draw all reasonable inferences in favor of the nonm oving party, Matsushita, 475 U.S. at 586, and a genuine dispute exists if a reasonable jury could find in favor of the non-m oving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 10 6 S. Ct. 250 5, 2510 , 91 L. Ed. 2d 20 2 (1986). However, “[i]f the eviden ce is m erely colorable, or is not significantly probative, sum m ary judgm ent m ay be granted.” Anderson, 477 U.S. at 249– 50 (citations om itted). “[T]he m ere existen ce of som e alleged factual dispute between the parties” alone will not defeat a properly supported m otion for sum m ary judgm ent. Id. at 247– 48 (em phasis in original). “Thus, the nonm oving party m ay n ot rest upon m ere conclusory allegations or denials but m ust set forth ‘concrete particulars’ showing that a trial is needed.” R.G. 10 Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 77 (2d Cir. 1984) (quoting S.E.C. v. Res. Autom ation Corp., 585 F.2d 31, 33 (2d Cir. 1978)). II. Th e FMLA Under the FMLA, eligible em ployees are entitled to a total of 12 work weeks of unpaid leave per year in order to care for a spouse or im m ediate fam ily m em ber with a serious health condition. 29 U.S.C. § 2612(a)(1)(C). Em ployees who utilize such leave m ust be allowed to return to their position or an “equivalent position with equivalent em ploym ent benefits, pay, and other term s and conditions of em ploym ent.” 29 U.S.C. § 2614(a)(1)(B). In addition, the FMLA m akes it unlawful “for any em ployer to interfere with, restrain, or deny the exercise of or the attem pt to exercise, any right provided” by the FMLA. 29 U.S.C. § 2615(a)(1). Regulations prom ulgated pursuant to the FMLA also prohibit em ployers from discrim in ating or retaliating again st em ployees who have used FMLA leave. 29 C.F.R. § 8 25.220 (c). Here, plaintiff alleges that defendant retaliated against him for taking FMLA leave by subjecting him to excessive scrutiny, harassm ent, and discrim in atory disciplinary actions. Com pl. ¶¶ 23, 38 . Retaliation claim s under the FMLA are an alyzed under the burden-shifting fram ework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Potenza v. City of New York, 365 F.3d 165, 168 (2d Cir. 20 0 4). Under the McDonnell Douglas fram ework, plaintiff m ust first establish a prim a facie case of discrim in ation by dem onstrating: 1) he exercised rights protected under the FMLA; 2) he was qualified for his position; 3) he suffered an adverse em ploym ent action; an d 4) the adverse em ploym ent action occurred under circum stances giving rise to an inference of retaliatory intent. Id. Although the standard to establish a prim a 11 facie case is not high, conclusory allegations alone are insufficient. Sharif v. Buck, 152 F. App’x 43, 44 (2d Cir. 20 0 5) (sum m ary order). The first two elem ents are undisputed: plaintiff took approved FMLA leave an d was qualified for his position as an electrician. Regarding the third elem ent, plaintiff essentially alleges that in retaliation for taking FMLA leave, he was subject to two types of adverse em ploym en t action: first, that his supervisor, Dorsi, subjected him to excessive scrutiny and harassm ent, including “yelling and scream ing at him on May 14, 20 0 8,” and, second, that he was suspended and subject to unfair disciplinary proceedings and term ination. Plaintiff’s Mem orandum in Opposition (“Pl.’s Mem .”) at 20 . A. Dorsi’s Alleged Harassm ent of Plaintiff In the FMLA context, an “adverse em ploym ent action” includes not only m aterially adverse changes in the term s and conditions of em ploym ent, Sanders v. N.Y. City Hum an Res. Adm in., 361 F.3d 749, 755 (2d Cir. 20 0 4), but also any action “harm ful to the point that it could well dissuade a reasonable worker from exercising her rights under the Act. This standard protects not from all retaliation, but from retaliation that produces in jury or harm .” Behringer v. Lavelle Sch. for the Blind, No. 0 8 Civ. 4899 (J GK), 20 10 WL 5158644, at *15 (S.D.N.Y. Dec. 17, 20 10 ) (internal quotations om itted) (citing Ragusa v. Malverne Union Free Sch. Dist., 381 F. App’x 8 5, 90 (2d Cir. 20 10 ) (sum m ary order)). No reasonable jury could find that Dorsi’s in teractions with plaintiff constituted an adverse em ploym ent action. While it is true that “the accum ulation of sm all reprisals m ay be aggregated so as to perm it consideration of their im pact in their totality,” Pl.’s Mem . at 19, even in the aggregate Dorsi’s actions cannot be said to rise to this level. 12 First, plaintiff alleges that in March 20 0 8 , Dorsi spoke to him while he was working an d asked him what he had done on his vacation. Peterson claim s he was harassed because Dorsi had not previously spoken to him and it was none of Dorsi’s business how he spent his vacation. No reasonable person could consider such a com m onplace conversation to be harassm ent or retaliation. During the second incident, on April 8 , 20 0 8, Dorsi told Cum m ings that he “didn’t like how that went down,” after Peterson left a work site m id-day to care for his wife. Peterson alleges Dorsi’s statem ent was a form of harassm ent for his having taken FMLA leave. However, Peterson testified that when he telephoned Dorsi to report he was leaving, Dorsi im m ediately agreed and did not express any disapproval or objection. Pl.’s Dep. at 36-37. Dorsi also signed off on Peterson’s tim e sheet without incident. Id. at 51-52; Dorsi Dep. at 50 . Even accepting plaintiff’s version of events as true, no reasonable worker would be deterred from exercising their FMLA rights by such an am biguous com m ent to a third party. The third incident was the confrontation between Peterson and Dorsi on May 14, 20 0 8. Peterson alleges the argum ent was precipitated by Dorsi harassing him by checking his attendance at the job site. However, it is undisputed that visiting jobs sites was one of Dorsi’s required duties. Pl.’s R. 56.1; Dorsi Dep. at 56-57. Am ong other things, Dorsi m onitored attendance and approved the daily labor sheets prepared by the Forem en, recording Gang attendance. Pl.’s R. 56.1 ¶ 50 ; Affidavit of J effrey M. Cum m ings dated Dec. 6, 20 11 (“Second Cum m ings Aff.”) ¶ 8 . Plaintiff him self subm itted records showing that Dorsi visited job sites and inspected work crews alm ost daily. See Affirm ation of J ason L. Abelove (“Abelove Aff.”) Ex. F. Although plaintiff asserts that Dorsi disproportionately visited Gang 40 in the Spring of 20 0 8 and he 13 interpreted this as excessive scrutiny of his attendance, the records plaintiff subm itted show that in the m onths leading up to this in cident Dorsi visited Gang 40 no m ore often than Gangs 38 or 35, which were also under his supervision. See id. In opposition to defendant’s m otion, plaintiff subm itted an affidavit from Cum m ings, asserting that in the Spring of 20 0 8, Dorsi constantly asked about Peterson’s whereabouts, “kept tabs” on him , and scrutinized his FMLA leave. Second Cum m ings Aff. ¶¶ 10 -11, 13. This affidavit directly contradicts Cum m ings’ prior sworn affidavit, stating that Dorsi never m ade statem ents about Peterson’s attendance or FMLA leave. See Lundin Decl. Ex. G (Affidavit of J erry M. Cum m ings dated May 25, 20 11). “[A] party m ay not create an issue of fact by subm itting an affidavit in opposition to a sum m ary judgm ent m otion that, by om ission or addition, contradicts the affiant’s previous deposition testim ony.” Hayes v. N.Y. City Dept. of Corr., 8 4 F.3d 614, 618 (2d Cir. 1996); see also Mack v. United States, 8 14 F.2d 120 , 124 (2d Cir. 1987) (“It is well settled in this circuit that a party’s affidavit which contradicts his own prior deposition testim ony should be disregarded on a m otion for sum m ary judgm ent.”). If a party could raise an issue of fact sim ply by subm itting an affidavit, contradicting the affiant’s prior sworn statem ents, “‘this would greatly dim inish the utility of sum m ary judgm ent as a procedure for screening out sham issues of fact.’” Hayes, 8 4 F.3d at 618 (quoting Perm a Res. & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)). Thus, Cum m ings’ second affidavit fails to create “genuine” issues for trial. In light of the foregoing, plaintiff has subm itted no evidence that would support the conclusion that Dorsi unfairly targeted him or harassed him by checking his attendance. The FMLA prohibits em ployers from discouraging or interfering with em ployees’ FMLA leave, or retaliating against em ployees who take FMLA leave. But it does not prohibit em ployers from 14 m onitoring em ployee’s attendance or investigating whether em ployees have engaged in m isconduct. While there m ay be instances where m onitoring is so oppressive and unjustified that it could dissuade a worker from exercising his FMLA rights, 2 plaintiff has provided no evidence that he was subject to anything m ore than reasonable supervision. As for the argum ent between Peterson and Dorsi, Peterson testified that he initiated the confrontation with Dorsi, that they both raised their voices, and that his coworkers intervened but did not need to physically restrain the two m en. Peterson does not allege that Dorsi threatened him physically or verbally. Viewing the evidence in the light m ost favorable to the plaintiff, as the Court m ust on summ ary judgm ent, Peterson’s description is that of an isolated argum ent, not harassm ent. Nevertheless, even if the Court were to consider Dorsi “yelling and scream ing” to be an adverse action, the circum stances do n ot give rise to an inference of retaliatory inten t. The sole grounds for inferring retaliatory intent is the statem ent, “you people abuse your FMLA.” Plaintiff him self adm itted that on April 8 , 20 0 8 he was im properly paid full wages for sick leave, when he in fact was caring for his wife an d should have received unpaid FMLA leave. Pl.’s Dep. at 51-54, 58. Plaintiff had nearly exhausted his FMLA leave and he did not notify LIRR of this error. Id. at 54. The obvious purpose of the FMLA’s prohibition on retaliation and interference is to protect em ployees’ legitim ate use of FMLA leave. A truthful accusation of im propriety can hardly be grounds for a claim . For the foregoing 2 Defendant argues that increased m onitoring and scrutiny cannot constitute an adverse em ploym ent action. See Def.’s Reply Mem . at 14-15 (citing Lawson v. N.Y. City Bd. Of Educ., No. 0 5 Civ. 825 (J SR) (HBP), 20 11 WL 869282 (S.D.N.Y. Feb. 25, 20 11). The Court is not persuaded that this rule is applicable. The cases to which defendant cites concern Title VII claim s. Title VII requires a “m aterially adverse change” to the conditions of plaintiff’s em ploym ent. In contrast, the FMLA prohibits not just m aterially adverse changes but actions which interfere with, restrain, or deter em ployee’s use of FMLA entitlem ents, a lesser showing. 15 reasons, plaintiff has failed to show that Dorsi subjected him to harassm ent or undue scrutiny or that his treatm ent of plaintiff was m otivated by hostility towards plaintiff’s legitim ate use of FMLA leave. A. Plaintiff’s Suspension and Disciplin e Plaintiff’s suspension and subsequent disciplinary proceedings qualify as adverse em ploym ent actions. See, e.g., Phillip v. City of New York, No. 0 9 Civ. 442 (ILG), 20 12 WL 135660 4, at *8 (E.D.N.Y. Apr. 19, 20 12) (suspension from duties and disciplinary proceedings constituted “adverse em ploym ent actions”). Regarding the fourth elem ent —evidence inferring retaliatory intent—plaintiff argues that “the fact that a num ber of sim ilarly situated em ployees, who were not on FMLA leave, and who ‘pled’ guilty to physical an d/ or verbal assaults of other em ployees, were not disciplined as harshly as he was disciplined, could certainly lead a reasonable fact finder to conclude that the treatm ent of the Plaintiff was based on his FMLA leave.” Pl.’s Mem . at 20 ; see also Com pl. ¶ 35 (“Sim ilarly situated white em ployees who are guilty of equivalent and even m ore serious offenses are not punished as severely.”). In support, plaintiff subm itted disciplin ary records from five other em ployees. 3 See Abelove Aff. Ex. G. The records show that in 1993, J oseph Conway was in a fight with a supervisor an d accepted a 30 -day suspension in lieu of going to trial. In April 20 0 1, Dennis Ochoa assaulted a subordinate em ployee an d accepted a three-m onth suspension in lieu of going to trial. In Novem ber 20 0 1, Steve Matoni fought with a security guard and accepted a 30 -day suspension in lieu of going to trial. In 20 0 4, J am es Gom ez was charged with threatening a supervisor. He accepted a 5-day 3 None of the five em ployees are African-Am erican, Peterson Aff. ¶ 88, and plaintiff also cites to their disciplinary records as evidence of disparate treatm ent based on race. That argum ent is addressed below. 16 suspension in lieu of going to trial. And on March 25, 20 11 Christopher Egner and J ose Morales shoved and pushed each other. Egner, who initiated the shoving, accepted a 10 -day suspension and Morales accepted a one-day suspen sion, both waiving their right to trial. In contrast, plaintiff was initially term inated and then, on appeal, given a fivem onth suspension. 4 What plaintiff fails to note is that all of these m en pled guilty and waived their right to trial. Because they accepted responsibility, they were not ‘sim ilarly situated’ to plaintiff, who proceeded to trial. It is undisputed that plaintiff was offered a 30 -day suspension and 30 days’ back pay in exchange for pleading guilty, the sam e punishm ent given to Conway an d Matoni and significantly less than the three m onths’ punishm ent given to Ochoa. He did not accept this offer. Plaintiff also alleged in the Com plaint that he was not given a statem ent of charges or an opportunity to rebut the charges in writing, which was “highly unusual.” Com pl. ¶ 30 . Plaintiff has subm itted no evidence, aside from this conclusory assertion, that LIRR was obligated to provide him with such an opportunity at the tim e of the incident or that other em ployees who did not take FMLA leave were perm itted such a rebuttal. The record shows that LIRR produced a statem ent of charges within 48 hours of the incident and held a full disciplinary hearing at which plaintiff had an opportunity to testify, call witnesses, give closing argum ents, and be represented by his union. Plaintiff has subm itted no other evidence that would show he was treated differently from em ployees who did not take FMLA leave, that his FMLA leave was a factor in the disciplinary proceedings, or that would otherwise perm it an inference of 4 Plaintiff was retroactively suspended for the tim e that he had been out of service during the disciplinary hearings. The undisputed record indicates that his suspension was m ade m ore lengthy by his union repeatedly postponing the disciplinary proceedings, delaying resolution of the m atter. See Lundin Decl. Ex. V (Tim eline of Trial). 17 retaliatory intent. Because plaintiff has failed to establish a prim a facie case, sum m ary judgm ent m ust be granted as to plaintiff’s FMLA claim s. B. Constructive Discharge In addition to the foregoing, plaintiff also apparently alleges that he was constructively discharged. See Com pl. ¶ 36; Pl.’s Mem . at 23-25. It is unclear whether plaintiff is alleging constructive discharge as an adverse em ploym en t action or as a separate cause of action but, in any event, plaintiff’s claim fails. “Constructive discharge of an em ployee occurs when an em ployer, rather than directly discharging an individual, intentionally creates an intolerable work atm osphere that forces an em ployee to quit involuntarily.” Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 8 1, 8 9 (2d Cir. 1996). “Working conditions are intolerable if they are so difficult or unpleasant that a reasonable person in the em ployee’s shoes would have felt com pelled to resign.” Id. (internal quotation m arks and citation om itted). Plaintiff apparently prem ises his claim upon his Novem ber 25, 20 0 8 resignation letter. See Lundin Decl. Ex. HH. Plaintiff alleges that he was forced to resign because his working conditions were m ade intolerable by (1) Dorsi’s harassm ent and (2) his disparately harsh disciplinary treatm ent, com pared with sim ilarly situated non-Black em ployees who are not on FMLA leave. For the reasons discussed previously, plaintiff has not shown that he was harassed or subject to disparate disciplin e. Plaintiff also claim s that he could not accept a five-m onth suspension and return to work because he had not been offered a change in work location and feared continued harassm ent from Dorsi. See Peterson Aff. ¶ 70 . There is no evidence that plaintiff ever requested such a change in assignm ent from LIRR. To the extent that plaintiff alleges he was constructively discharged, sum m ary judgm ent is also granted as to this claim . 18 III. Ra ce D is crim in atio n A. Title VII and the NYSHRL Plaintiff alleges defendants subjected him to discrim ination based on his race pursuant to Title VII and the NYSHRL. Com pl. ¶¶ 43, 48. These claim s are also analyzed under the burden-shifting fram ework set forth in McDonnell Douglas Corp. v. Green. See Viven zio v. City of Syracuse, 611 F.3d 98, 10 6 (2d Cir. 20 10 ) (noting the basic analytical fram ework for claim s under Title VII and the NYSHRL is the sam e). Under the McDonnell Douglas fram ework, plaintiff m ust first establish a prim a facie case of discrim in ation by dem onstrating: (1) he is a m em ber of a protected class; (2) he was qualified for his position or was perform ing his duties satisfactorily; (3) he suffered an adverse em ploym ent action; an d (4) there is som e evidence of a causal connection between his m em bership in a protected class and the adverse em ploym ent action. St. Mary’s Honor Ctr. v. Hicks, 50 9 U.S. 50 2, 50 6, 113 S. Ct. 2742, 125 L. Ed. 2d 40 7 (1993). The first two elem ents are undisputed: plaintiff, an African-Am erican, is a m em ber of a protected class and was qualified for his position. Regarding the third an d fourth elem ents, plaintiff relies upon the sam e alleged adverse em ploym ent actions as those that form the basis of his FMLA claim . See Com pl. ¶¶ 42-43. Even assum ing these actions qualified as adverse em ploym en t actions, plaintiff has failed to show an y causal connection between his race an d the adverse actions taken against him . Plaintiff’s only grounds for an inferen ce of racial anim us are: 1) Dorsi’s alleged statem ent that “you people abuse your FMLA leave;” and 2) his disparately severe disciplinary treatm ent, com pared with five em ployees who were not African-Am erican. Pl.’s Mem . at 21. For the reasons discussed previously, those five em ployees were not 19 sim ilarly situated to plaintiff and no inference of discrim in ation can be drawn from those records. As for Dorsi’s statem ent on May 14, 20 0 8, plaintiff argues that “based on this statem ent, and the fact that the only two em ployees under Mr. Dorsi’s supervision at that tim e who were on FMLA – the Plaintiff and Mr. Cum m ings, the forem an – were both African-Am erican, a jury could certainly find that the treatm ent of the plaintiff was based on his race.” Pl.’s Mem . at 21. First, it is not clear that “you people” was a reference to plaintiff’s race. At the tim e Dorsi allegedly m ade this statem ent, all three workers present were African-Am erican and of the 26 m en under his supervision, at least 8 were African-Am erican. Dorsi Dep. at 17. However, only two AfricanAm ericans—Cum m ings and Peterson—had taken FMLA leave. Thus, “you people” m ore logically referred to the fact that Peterson and Cum m ings were on FMLA leave, not their race. However, even if it were a reference to plaintiff’s race, sum m ary judgm ent would be warranted. Stray rem arks, m ade without any other indicia of discrim ination, do not constitute sufficient eviden ce to support a case of em ploym ent discrim ination. Danzer v. Norden Sys. Inc., 151 F.3d 50 , 56 (2d Cir. 1998); Abdu– Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 468 (2d Cir. 20 0 1) (“[S]tray rem arks [even] of a decision-m aker, without m ore, cannot prove a claim of em ploym ent discrim in ation.”). Plaintiff has provided no other evidence of racial anim us. For the foregoing reasons, plaintiff has failed to establish a prim a facie case of racial discrim ination and sum m ary judgm ent is granted as to plaintiff’s Title VII claim s. B. The NYCHRL 20 NYCHRL claim s m ust be considered separately from federal and state law discrim ination claim s. Vargas v. Morgan Stanley, 438 F. App’x 7, 10 (2d Cir. 20 11) (sum m ary order). Previously, courts interpreted the NYCHRL as coextensive with Title VII and the NYSHRL. The New York City Council rejected such equivalents by passing the Local Civil Rights Restoration Act of 20 0 5. Loeffler v. Staten Island Univ. Hosp., 58 2 F.3d 268, 277– 79 (2d Cir. 20 0 9) (explaining the 20 0 5 Act “abolish[ed] ‘parallelism ’ between the [NYCHRL] and federal and state anti-discrim ination law”). To state a discrim ination claim under NYCHRL, plaintiff need not show that an em ploym ent action was m aterially adverse; any m anner of discrim ination is prohibited. See Margherita v. FedEx Exp., No. 0 7 Civ. 48 26 (NG) (RER), 20 11 WL 50 24577, at *8 (E.D.N.Y. Oct. 20 , 20 11). Nevertheless, a plaintiff m ust still link the adverse em ploym ent action to a discrim inatory m otivation and where a plaintiff fails to do so, his claim s fail. Id. For the reasons discussed above, Peterson has failed to m ake such a link and plaintiff’s NYCHRL claim m ust also be dism issed. IV. In te n tio n al In flictio n o f Em o tio n al D is tre s s Under New York law, plaintiff m ust establish the following four elem ents to show intentional infliction of em otional distress: (1) extrem e and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe em otional distress; (3) a causal connection between the conduct and injury; an d (4) severe em otional distress. See Howell v. N. Y. Post Co., Inc., 8 1 N.Y.2d 115, 121, aff’d in part, 8 2 N.Y.2d 690 , 619 (1993). The elem ents of the rule “are rigorous and difficult to satisfy.” Id. at 122. Plaintiff has provided no eviden ce of the “extrem e and outrageous conduct” necessary to m eet the high bar set in New York for recovery for intentional infliction of 21 em otional distress. “The conduct alleged m ust be so outrageous in character, an d so extrem e in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.” Reyes v. Fairfield Props., 661 F. Supp. 2d 249, 270 (E.D.N.Y. 20 0 9) (quotation om itted). “Acts which m erely constitute harassm ent, disrespectful or disparate treatm ent, a hostile environm ent, hum iliating criticism , intim idation, insults or other indignities fail to sustain a claim of intentional infliction of em otional distress because the conduct alleged is not sufficiently outrageous.” Lydeatte v. Bronx Overall Econ. Dev. Corp., No. 0 0 Civ. 5433 (GBD), 20 0 1 WL 18 0 0 55, at *2 (S.D.N.Y. Feb. 22, 20 0 1). Consequently, “[a]s a general proposition, adverse em ploym ent actions, even those based on discrim ination, are not sufficient bases for intentional infliction claim s.” Em m ons v. City Univ. of N. Y., 715 F. Supp. 2d 394, 424 (E.D.N.Y. 20 10 ). Even taking all of Peterson’s allegations as true, defendant’s conduct does not m eet the required standard, and sum m ary judgm ent is also granted as to plaintiff’s claim for intentional infliction of em otional distress. 22 CON CLU SION For all of the foregoing reasons, defendant’s m otion for sum m ary judgm ent is granted as to all claim s. The Clerk of the Court is respectfully directed to close the case. SO ORD ERED . Dated: Brooklyn, New York J une 19, 20 12 _ _ / s/ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ I. Leo Glasser United States District J udge 23
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