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discussing the single employer test
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No. 02 Civ. 5902 (RJH).
March 7, 2005
MEMORANDUM OPINION AND ORDER
Titus A. Toriola brought this action pro se against the New York City Transit Authority ("NYCTA"), asserting claims of employment discrimination and retaliation based on national origin in contravention of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e et seq. Specifically, Toriola, a U.S. citizen of Nigerian origin, claims that the NYCTA impermissibly engaged in disparate treatment and retaliated against him by terminating him as a bus operator from the Manhattan and Bronx Surface Transit Operating Authority ("MABSTOA") based on national origin discrimination. The NYCTA now moves for summary judgment on all claims asserted by Toriola. For the reasons set forth below, the Court grants defendant's motion for summary judgment, thereby dismissing this action in its entirety.
BACKGROUND
I. Toriola's Employment at the MABSTOAUnless otherwise indicated, the following facts are undisputed. On or about October 25, 1999, the MABSTOA hired Toriola as a probationary bus operator. (Def.'s 56.1 ¶ 1.) Toriola was trained in a four-week period along with a class of five other drivers, including Michael Haynes, Daisy Morales, Dennis Rivera and Oliver Cyrus. (Toriola Dep. Tr. at 40; Dicciardello Dep. Tr. at 25.) On January 6, 2000, Toriola angle-parked the bus several times and failed to shut the front door while picking up wheelchairs. (Ellman Decl., Ex. 2.) Subsequently, on February 23, 2000, Toriola, while operating bus #4802, ran over the right leg of a pedestrian who had slipped in the street on some ice. ( Id., Ex. 3.) The investigator reviewing the accident noted that plaintiff gave "varying versions of the accident" and remarked that he had "performed unsatisfactorily during his February 10th and 11th driving evaluations." ( Id.) The Training Division of the NYCTA (Training Division") determined that Toriola "failed to ensure that the crosswalk was clear before completing the right turn." ( Id.) Moreover, the pedestrian subsequently brought a five million dollar lawsuit against Toriola, the NYCTA and MABSTOA in New York State court for injuries stemming from the accident. (Toriola Dep. Tr. at 61; Pl.'s Ex. 4.) The NYCTA represented Toriola at no at no cost to him in this action. (Pl.'s Ex. 5.) The case ultimately settled for $500,000. (Pl.'s Mem. in Opp'n to Mot. for Summary J. ("Pl.'s Mem.") at 3.)
The facts as herein recited are drawn from defendant's Rule 56.1 Statement ("Defs.' 56.1 ¶ ___"); Declaration of Joyce Rachel Ellman ("Ellman Decl. ¶") and attached exhibits; Transcript of deposition testimony of Titus A. Toriola ("Toriola Dep. Tr. at ___"); Transcript of deposition testimony of Richard Dicciardello ("Dicciardello Dep. Tr. at ___"). In addition, plaintiff has submitted numerous exhibits that are either misnumbered, numbered in duplicate, or have no numbers whatsoever for identification purposes. The Court shall simply refer to each document as it is referred to by Toriola.
The fifth bus operator was simply identified as "Colon." (Toriola Dep. Tr. at 42.)
As a result of the accident, the Training Division recommended that Toriola should be "counseled" and that his "probationary period should be extended." ( Id.) Toriola appeared at the Training Center on February 9, 2000, and received a review of the procedures for checking clearances and recognizing hazards. ( Id., Ex. 4.) On February 29, 2000, Toriola, represented by his union, the Transport Workers Union ("TWU"), additionally agreed to extend his probationary period as a bus operator an additional six months from April 25, 2000 until October 25, 2000. ( Id., Ex. 5.) A probationary report filled out on February 29, 2000 stated that while Toriola's cooperation with supervision and cooperation with associates was deemed "satisfactory," his production and/or operating record was "unsatisfactory." ( Id.)
On April 27, 2000, Toriola's operation of the bus resulted in a second accident, following which he was counseled to protect the right side of the bus at all times. ( Id., Ex. 6.) Toriola acknowledged that he was instructed to keep four feet from any parked vehicles. (Dicciardello Dep. Tr. at 43.) That same day, Toriola caused an "unnecessary disruption of service by failing to pull out a replacement bus after a road call." (Ellman Decl., Ex. 7.) On June 9, 2000, the Training Division again cited Toriola for driving too aggressively by running through four yellow traffic lights and failing to protect the right side of the bus. ( Id., Ex. 8.) Toriola admitted that he was counseled regarding the June 9, 2000 incident. ( Id., Ex. 9.)
On July 12, 2000, Toriola was terminated from his employment as a probationary bus operator with the NYCTA. ( Id., Ex. 12.) The request to terminate Toriola listed eleven occurrences, including two accidents. ( Id.) Richard Dicciardello, Toriola's supervisor, testified that based on his personal knowledge and experience, Toriola "should not be driving a bus from [sic] the New York City Transit Authority." (Dicciardello Dep. Tr. at 69.)
On December 21, 2000, Toriola filed a charge with the Equal Employment Opportunity Commission against the MABSTOA. ( Id.) Toriola claimed that the February 23, 2000 accident was not his fault and that he was "punished" and "harassed" even though five other drivers who were involved in accidents were not treated adversely. ( Id.) The EEOC dismissed the charge and issued a right to sue letter on March 29, 2001. ( Id., Ex. 15.) Toriola initially claimed that he received the letter on March 29, 2001, and later stated that he received the letter on February 16, 2001. ( Id.)
Plaintiff filed a complaint against the NYCTA in the Southern District of New York on June 29, 2001 and subsequently amended the complaint on October 22, 2002. (Def.'s 56.1 ¶ 14.) In his amended complaint, plaintiff alleged that six other probationary bus drivers were given more lenient disciplinary treatment. In response to defendant's summary judgment motion, however, plaintiff limits his claim of disparate treatment to two other co-workers, Michael Haynes and Daisy Morales. (Pl.'s Mem. at 5-6.) In substance, plaintiff claims that Hayes and Morales were similarly situated to plaintiff in that both were probationary employees who were terminated for poor operating records. ( Id.) Both Haynes and Morales were subsequently rehired, and plaintiff alleges that defendant's failure to rehire him was the result of national origin discrimination.
II. Michael Haynes and Daisy Morales
Michael Haynes originally began working for the MABSTOA on October 25, 1999 as a probationary employee. (Ellman Decl., Ex. 16.) Haynes subsequently resigned during his probationary period and was appointed as a probationary bus operator with the NYCTA. ( Id.) In February of 2001, Haynes returned to the MABSTOA as a probationary employee and agreed to an extension of his probation until February of 2002. ( Id.) However, Haynes' probationary employment was terminated in October of 2001 based on an unsatisfactory operating record that included two collisions of indeterminate seriousness. (Pl.'s Exs. 11, 15 and 20.) After Haynes was terminated, his union, the TWU, filed a grievance claiming that Haynes was in fact a permanent employee under the collective bargaining agreement and subject to contractual disciplinary appeal procedures. An arbitrator subsequently ruled that Haynes was a permanent employee. (Ellman Decl., Ex. 16.) Pursuant to a settlement agreement between the MABSTOA and the TWU, the disciplinary penalty against Haynes as a permanent employee was modified to a suspension. ( Id.)
Haynes' employment record also reflects a complaint by an unidentified male rider that Hayes threatened him with a knife. (Pl.'s Exs. 17 and 18.) Haynes denied the incident. (Pl.'s Exhibit marked as "Michael Haynes".) A female rider called the next day and stated that she observed the incident, that Haynes did not threaten anyone with a knife and that the male rider had been intoxicated and abusive. (Pl.'s Ex. 6.)
Daisy Morales was hired on October 25, 1999, as a probationary bus operator. ( Id., Ex. 17.) On November 12, 1999, Morales struck a concrete divider with the left side of the bus. (Pl.'s Exhibit marked as "Daisy Morales".) On January 17, 2000, a customer was injured while riding on a bus being driven by Morales. (Pl.'s Ex. 8.) On January 24, 2000, Morales was terminated based on these two incidents during her probationary period. (Ellman Decl., Ex. 17.) Upon the determination that Morales was "not totally at fault" in the January 17, 2000 incident, Morales was reinstated as a bus operator by April 20, 2000. ( id., Pl.'s Ex. 8).
DISCUSSION
I. 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 there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (quoting Fed.R.Civ.P. 56(c)). Summary judgment may also be granted when the opposing party fails to establish an element essential to that party's case and on which that party would bear the burden of proof at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 321 (1986); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d Cir. 1998) (summary judgment is "mandated" when "the evidence is insufficient to support the non-moving party's case.")
In order to defeat a defendant's properly supported motion for summary judgment, a plaintiff in an employment discrimination action must show that there is a material issue of fact as to whether the employee's protected status was a motivating factor in the adverse employment action. See Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995) (plaintiff is not required to show that the employer's proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons and that the prohibited factor was at least one of the "motivating" factors). Because employment discrimination actions often present factual issues as to the presence or absence of discriminatory intent that are not appropriately resolved at the summary judgment, courts must exercise caution in such cases and grant this remedy only when the employer has proffered evidence of a legitimate, nondiscriminatory reason for its action which raises "no genuine issue and which no rational trier of fact could reject." Id. at 203.
In reviewing the record, the district court must assess the evidence in "the light most favorable to the non-moving party," resolve all ambiguities, and "draw all reasonable inferences" in its favor. Am. Cas. Co. v. Nordic Leasing, Inc., 42 F.3d 725, 728 (2d Cir. 1994); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Nevertheless, an alleged factual dispute between the parties will not by itself defeat a motion for summary judgment, since "the requirement is that there be no genuine issue of material fact." Anderson, 477 U.S. at 247-48 (emphasis in original). "A fact issue is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Mitchell v. Shane, 350 F.3d 39, 47 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 248). "A fact is `material' if it might affect the outcome of the suit under governing law." Id. (quoting Anderson, 477 U.S. at 248).
To survive summary judgment, the non-moving party cannot rely on mere allegations, denials, conjectures or conclusory statements, but must present affirmative and specific evidence showing that there is a genuine issue for trial. See Anderson, 477 U.S. at 256-57; Gross v. Nat'l Broad. Co., 232 F. Supp. 2d 58, 67 (S.D.N.Y. 2002). Where, as here, the party primarily relies on his own statements asserted in his opposition memorandum, such statements must "be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (quoting Fed.R.Civ.P. 56(e)). Moreover, hearsay statements that would be inadmissible at trial, conclusory assertions, and mere denials contained in those affidavits are insufficient to create a genuine issue of material fact. Id. (internal citations omitted); Quinn v. Syracuse Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980); Nora Beverages, Inc. v. Perrier Group of Am., Inc., 269 F.3d 114, 123-24 (2d Cir. 2001).
Because Toriola is proceeding pro se, the Court is cautious in fulfilling its obligation "to construe his pleadings liberally, particularly when they allege civil rights violations." Hemphill v. New York, 380 F.3d 680, 687 (2d Cir. 2004) (internal citations and quotations omitted). Moreover, the Court has broad discretion in overlooking a party's failure to comply with Local Rule 56.1, such as is the case here. Holtz v. Rockefeller Co., Inc., 258 F.3d 62, 73-74 (2d Cir. 2001) (excusing pro se plaintiff's failure to submit 56.1 statement). While Toriola's pleadings and submissions regarding his Local Rule 56.1 obligations are woefully inadequate, the Court exercises its discretion in overlooking these defects and proceeds to the merits of his claims. Nevertheless, any assertions by Toriola that are unsubstantiated shall "be disregarded and the record reviewed independently." Id.
II. Procedural Defects in Toriola's Title VII Claims
As a preliminary matter, the NYCTA has identified three deficiencies that it claims bar Toriola's Title VII remedies: (1) Toriola improperly named the NYCTA as a defendant when he should have sued the MABSTOA; (2) Toriola failed to exhaust his administrative remedies against the NYCTA; and (3) Toriola's claims are time-barred. (Def.'s Mem. in Supp. of Mot. for Summary J. ("Def.'s Mem.") at 5-8.) In response, Toriola claims that both the NYCTA and MABSTOA jointly participated in all relevant personnel decisions, his EEOC charge against the MABSTOA should be construed as against the NYCTA and his claims fit within the ninety-day period allowed to assert Title VII claims. (Pl.'s Mem. at 6-7.)
A. MABSTOA and NYCTA
Defendant first contends that because Toriola was only employed by the MABSTOA, any claims asserted against the NYCTA must be dismissed. (Def.'s Mem. at 5.) New York courts have recognized that the MABSTOA and NYCTA are "separate entities." Reis v. Manhattan and Bronx Surface Transit Operating Authority, 161 A.D.2d 288, 288, 555 N.Y.S.2d 61, 61 (1st Dep't 1990); Rosas v. Manhattan and Bronx Surface Transit Operating Authority, 109 A.D.2d 647, 647, 486 N.Y.S.2d 235, 235 (1st Dep't 1985). However, the MABSTOA, a public benefit corporation created pursuant to New York State Public Authorities Law § 1203-a, is a subsidiary of the NYCTA. See New York State Public Authorities Law § 1201 et seq.; Ford v. New York City Transit Authority, No. 98 Civ. 4768 (SJ), 2001 WL 930778, at *1 (E.D.N.Y. May 31, 2001).
A parent may be considered the employer of a subsidiary's employees for Title VII purposes depending on whether the parent exercises "centralized control of labor relations." Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 (2d Cir. 1995). The NYCTA's name and banner appear on several pieces of correspondence directed to Toriola regarding his termination, counseling statements, bus in-service observations, and sick and personnel actions files. (Pl.'s Exs. 1, 2, 4, 7, 9 and 17.) In addition, the letterheads of the NYCTA and MABSTOA jointly appear on evaluation memorandums, evaluation grids and disciplinary action reports regarding probationary bus operators. (Pl.'s Exs. 4, 13 and 15; Pl.'s Introductory Exhibit.) Based on these documents, it is unclear whether the NYCTA and MABSTOA should be considered one employer for the purposes of analyzing Toriola's employment discrimination claims. See Zerelli-Edelglass v. New York City Transit Authority, 333 F.3d 74, 77 (2d Cir. 2003) (collectively referring to MABSTOA and NYCTA as single employer-defendant in Title VII sex discrimination suit although MABSTOA was plaintiff's actual employer); Alston v. New York City Transit Authority, No. 02 Civ. 2400 (JGK), 2003 WL 22871917, at *1 (S.D.N.Y. Dec. 3, 2003) (bus operator's Title VII claim asserted against MABSTOA and NYCTA). Given that questions of fact abound as to whether the NYCTA and MABSTOA may be considered a single employer for the purposes of Title VII claims, the Court cannot resolve this issue at the summary judgment stage on the present record.
Similarly, defendant's contention that Toriola's failure to name the NYCTA in his EEOC charge is a fatal procedural defect to his Title VII claims runs counter to the Second Circuit's well-established latitude towards pro se litigants. See Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991) (adopting a "flexible stance in interpreting Title VII's procedural provisions" since pro se litigants are "not versed in the vagaries of Title VII and its jurisdictional and pleading requirements"). While generally, a district court lacks subject matter jurisdiction over a defendant who has not been named in an EEOC charge, see Brodie v. New York City Transit Authority, No. 96 Civ. 6813 (LMM), 1998 WL 599710, at *5 (S.D.N.Y. Sept. 10, 1998) (citing cases), the Second Circuit has recognized an "identity of interest" exception, whereby a Title VII suit may proceed against an unnamed party as long as there is a "clear identity of interest between the unnamed defendant and the party named in the administrative charge." Johnson, 931 F.2d at 209. In making this determination, a court must consider:
1) whether the role of the unnamed party could through reasonable effort by the complainant be ascertained at the time of the filing of the EEOC complaint; 2) whether, under the circumstances, the interests of a named [party] are so similar as the unnamed party's that for the purpose of obtaining voluntary conciliation and compliance it would be unnecessary to include the unnamed party in the EEOC proceedings; 3) whether its absence from the EEOC proceedings resulted in actual prejudice to the interests of the unnamed party; 4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.Id. at 209-10.
At this juncture, there is insufficient evidence contained in the record for the Court to conclude one way or the other that the factors listed in the Johnson test decisively favor plaintiff or defendant. Neither party has seriously argued this point or put forward evidence regarding this issue. Instead, defendant merely reiterates its stance that the MABSTOA and NYCTA are separate legal entities without explicating further the nature of the relationship between the two entities or any prejudice the NYCTA may have suffered by Toriola's failure to name it in his EEOC charge. (Def.'s Mem. at 6-7.) Accordingly, the Court finds that, for the purposes of this motion, there remain issues of fact regarding the relationship between the NYCTA and MABSTOA sufficient to preclude summary judgment on this issue.
B. Untimeliness of Toriola's Title VII Claims
Assuming that Toriola's Title VII claims could be maintained against the NYCTA, defendant nevertheless argues that Toriola untimely filed his Title VII claims outside the ninety-day period following his receipt of a right to sue letter issued by the EEOC. (Def.'s Mem. at 8.) In response, Toriola appears to assert that he received the letter at the post office on April 2, 2001. (Pl.'s Mem. at 7.)
Title VII requires a plaintiff to file his claim within ninety days of his receipt of a right to sue letter from the EEOC or applicable state or local agency. 42 U.S.C. § 2000e-5(f)(1); Sherlock v. Montefiore Medical Center, 84 F.3d 522, 525 (2d Cir. 1996) ("In order to be timely, a claim under Title VII or the ADEA must be filed within 90 days of the claimant's receipt of a right-to-sue letter.") (internal citations omitted). Plaintiff filed his original complaint on June 29, 2001. (Def.'s 56.1 ¶ 14.) Following plaintiff's submission of his charge to the EEOC on December 21, 2000 ( id., Ex. 13), the EEOC dismissed the charge and issued a right to sue letter dated March 29, 2001. ( Id., Ex. 14.)
Normally, it is "assumed that a mailed document is received three days after its mailing," which, in the situation of the government providing notice to a party, is presumed to be the date shown on the notice. Sherlock, 84 F.3d at 526. As such, the Court shall assume that Toriola, as he acknowledges (Pl.'s Mem. at 7), received the right to sue letter on April 2, 2001. Accordingly, the Court concludes Toriola's initial complaint asserting Title VII claims filed on June 29, 2001 fits within the ninety-day period and is therefore timely. The Court shall now turn to the merits of Toriola's discrimination claims.
There is some ambiguity as to whether Toriola received the right to sue letter earlier than March 29, 2001. Toriola initially claimed to have received the right to sue letter on March 29, 2001 in his complaint. (Ellman Decl., Ex. 15.) In his amended complaint, Toriola then asserted that he received the letter on February 16, 2001. ( Id., Ex. 13.) Finally, in his opposition memorandum, Toriola stated that he received the right to sue letter on April 2, 2001. (Pl.'s Mem. at 7.)
III. Toriola's Discrimination Claims
Toriola has asserted claims of disparate treatment and retaliation based on national origin discrimination in violation of Title VII. Title VII prohibits an employer from discharging 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). The broad aim of Title VII is "to eliminate discrimination in employment, that is, employees who are similarly situated are not to be treated differently simply because they differ from one another" in aspects such as their national origin. Cosme v. Henderson, 287 F.3d 152, 157 (2d Cir. 2002).
The burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), sets forth the order and allocution of proof in evaluating disparate treatment and retaliation claims asserted under Title VII. See McDonnell Douglas, 411 U.S. at 800-802 (Title VII); Hollander v. American Cyanamid Co., 895 F.2d 80, 83 (2d Cir. 1990) (applying McDonnell Douglas framework to disparate treatment claim); Jetter v. Knothe Corp., 324 F.3d 73, 75 (2d Cir. 2003) (analyzing retaliation claim under McDonnell Douglas framework). A plaintiff must first establish a prima facie case of disparate treatment "by showing that 1) that he belonged to a protected class; 2) that he was qualified for the position he held; 3) that he suffered an adverse employment action; and 4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004) (internal citations omitted). To establish a prima facie case of retaliation, a plaintiff must show that "(1) the employee was engaged in a protected activity; (2) the employer was aware of that activity; (3) the employee suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action." Reed v. A.W. Lawrence Co. Inc., 95 F.3d 1170, 1178 (2d Cir. 1996). A causal connection may be "established either indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant." Johnson, 931 F.2d at 207 (internal citations and quotations omitted).
Assuming that the plaintiff has presented a prima facie case, a presumption of discriminatory animus arises, and the burden shifts to the defendant to proffer a legitimate, nondiscriminatory business rationale justifying its adverse employment action. McDonnell Douglas, 411 U.S. at 802. Once the defendant is able to meet that burden, the plaintiff must "demonstrate by competent evidence that `the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Patterson, 375 F.3d at 221 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
Defendant has not contested that plaintiff, a male of Nigerian origin, is a member of a protected class, was qualified for the position of probationary bus operator and suffered an adverse employment action. (Def.'s Mem. at 9-10.) Instead, defendant argues that plaintiff has not established the fourth element of a prima facie case in that he failed to produce any evidence that the circumstances surrounding his termination gave rise to an inference of discrimination. ( Id. at 10.) In response, plaintiff contends that the MABSTOA's preferential treatment of other similarly situated bus operators discharges his prima facie burden. Specifically, plaintiff's evidence in support of this argument consists of his identification of two other probationary employees of American origin, Haynes and Morales, who were terminated and rehired despite substandard operating records. (Toriola Dep. Tr. at 58; Ellman Decl., Exs. 16 and 17.)
A showing that the "employer treated a similarly situated employee differently is `a common and especially effective method' of establishing a prima facie case of discrimination." McGuinness v. Lincoln Hall, 263 F.3d 49, 53 (2d Cir. 2001). To show that two employees are "similarly situated," a plaintiff is not "obligated to show disparate treatment of an identically situated employee." Id. at 53-54. Rather, it is "sufficient that the employee to whom plaintiff points be similarly situated in all material respects." Id. at 54. In a disparate discipline case, this determination hinges on "(1) whether the plaintiff and those he maintains were similarly situated were subject to the same workplace standards and (2) whether the conduct for which the employer imposed discipline was of comparable seriousness." Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (internal citations omitted). While the determination of whether two employees are "similarly situated" is normally a question of fact for the jury, the plaintiff must still offer "sufficient evidence from which a jury could reach that conclusion." Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001).
Toriola first argues that Haynes is a similarly situated employee who was rehired after being terminated despite numerous driving infractions on his record as a bus operator. While the request to terminate Haynes cited nine occurrences, two of which were collisions and one of which was a customer accident (Ellman Decl., Ex. 16), it is also undisputed that following his termination, Haynes' union representative, the TWU, filed a grievance on his behalf claiming that he was a permanent employee entitled to the contractual grievance process that is not available to probationary employees. ( Id.) Arbitration ensued, and the arbitrator in fact found that Haynes was a permanent employee, not a probationary one. ( Id.) Following arbitration, Haynes received a suspension in lieu of termination as part of a settlement agreement between the MABSTOA and the union. ( Id.) Toriola, as a probationary MABSTOA bus operator, cannot be considered "similarly situated" to Haynes, a permanent MABSTOA employee, with respect to the conditions under which he could be terminated, and thus the mere fact that Toriola was fired for his poor operating record "would not by itself support an inference of discrimination." Feingold, 366 F.3d at 154.
In Feingold, the Second Circuit noted that evidence that other similarly situated employees "were not disciplined at all for their allegedly erroneous adjudications" would, however, support an inference of discriminatory motive. Feingold, 366 F.3d at 154. Here, Haynes was still punished for his poor record although he received a lesser discipline due to his status as a permanent employee with grievance process rights under a collective bargaining agreement. (Ellman Decl., Ex. 16.)
Morales also cannot be considered a similarly situated employee because the facts surrounding Morales' termination and rehiring are clearly distinguishable from Toriola's situation. The request to terminate Morales only listed two occurrences, in which Morales (1) struck a concrete divider on November 12, 1999 and (2) a customer was injured on a bus she was driving on January 17, 2000. ( Id., Ex. 17.) Following her termination, the Training Division determined that she was not "totally at fault" in the January 17, 2000 incident. ( Id.) Specifically, the NYCTA issued a letter stating that Morales "was not involved in an accident while driving a New York City Transit vehicle. On January 17, 2000, the above employee had a customer injury while riding on the bus." (Pl.'s Ex. 8.) Consequently, Morales was reinstated as a bus operator. (Ellman Decl., Ex. 17.)
Toriola's attempt to compare himself to Morales is unavailing because his operating record, which included a serious accident in which he ran over the leg of a pedestrian, is materially worse than Morales' operating record, which only contained the remaining citation of a collision with the concrete divider during which no one was injured. Cruz v. Coach Stores, Inc., 202 F.3d 560, 567-68 (2d Cir. 2000) (affirming grant of summary judgment where terminated employee who engaged in physical assault was not similarly situated to employees who used racial slurs); Tomasino v. Mount Sinai Medical Center and Hospital, No. 97 Civ. 5252 (TPG), 2003 WL 1193726, at *14 (S.D.N.Y. March 13, 2003) (granting summary judgment where none of the other nurses plaintiff identified as "similarly situated" had committed as serious an infraction); McDonald v. Maimonides Medical Center, No. 99 Civ. 6849 (JG), 2002 WL 257818, at *5 (E.D.N.Y. Jan. 3, 2002) (granting summary judgment where plaintiff failed to produce evidence that other employees who had tardiness problems were treated more favorably than plaintiff). Other than the fact that both Toriola and Morales were probationary bus operators, Toriola fails to produce evidence supporting an "objectively identifiable basis for comparability." Graham, 230 F.3d at 40. Because Toriola fails to identify any similarly situated employees afforded preferential treatment or otherwise adduce any evidence in support of his claims, the Court finds that Toriola has failed to meet his prima facie burden with respect to his disparate treatment claim.
Even assuming that plaintiff could meet this burden, defendant has produced Toriola's operating record, which is replete with accidents, instances in which Toriola failed to protect the right side of the bus, hazardous driving practices, several counseling sessions and tardiness problems. (Ellman Decl., Exs. 2-12; Pl.'s Exs. 4 and 6; Toriola Dep. Tr. at 61.) Based on that record, Toriola's supervisor opined that Toriola should not have been driving a bus. (Dicciardello Dep. Tr. at 69.) Accordingly, the Court finds that defendants have proffered legitimate, nondiscriminatory reasons for terminating Toriola. James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000) (once the defendant proffers a legitimate, nondiscriminatory reason, the defendant "will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.")
The burden then shifts back to Toriola to "demonstrate by competent evidence that `the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Patterson, 375 F.3d at 221 (quoting Burdine, 450 U.S. at 253). Indeed, the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff," to the extent that "if the plaintiff has failed to show that there is evidence that would permit a rational factfinder to infer that the employer's proffered rationale is pretext, summary judgment dismissing the claim is appropriate." Id. (internal citations and quotations omitted). In making this determination, a reviewing court should "consider a number of factors including `the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.'" Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 148-49 (2000)).
As noted, plaintiff has failed to show that similarly situated employees received lesser disciplines; therefore, no evidence of pretext arises from the disciplinary files of Haynes or Morales. The only other evidence of pretext offered by plaintiff consists of his conclusory and speculative assertions that he was not at fault in the accident involving the pedestrian and that he could not possibly have run through four yellow traffic lights without hitting a taxi. (Pl.'s Mem. at 3-5.) Toriola further claims in a conclusory fashion that the later citations he received on his record were part of a "setup to get me due to [the] accident on 2/23/00." ( Id. at 4.) Indeed, Toriola admitted that because the pedestrian involved in the February 22, 2000 accident sued "[the MABSTOA] for five million lawsuit [sic]," the MABSTOA "terminated me because of that." ( Id. at 60.) This claim, of course, is self-defeating since it asserts that plaintiff was fired for a reason that has absolutely nothing to do with national origin discrimination. Moreover, whether Toriola agreed with the MABSTOA's evaluation that he was at fault is irrelevant since the MABSTOA is entitled to make such determinations. Absent evidence of discrimination, the Court will not question the MABSTOA's decision to terminate Toriola based on his operating record regardless of whether that decision appears unwise. Gallo v. Prudential Residential Servcs., Ltd. Partnership, 22 F.3d 1219, 1226 (2d Cir. 2000) (commenting that "courts should be careful not to second-guess an employer's judgment that it makes in good faith"); Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 104 (2d Cir. 2001).
Ultimately, the Court finds no evidence or any genuine issue of material fact in the record that could support an inference of national origin discrimination. Although defense counsel repeatedly questioned him regarding his basis for asserting national origin discrimination claims, Toriola simply speculated that the MABSTOA terminated him "because of my national origin, because of the way that I talk." (Toriola Dep. Tr. at 63.) However, unsupported allegations "do not create a material issue of fact." Weinstock v. Columbia University, 224 F.3d 33, 41 (2d Cir. 2000); Smith v. American Express Co., 853 F.2d 151, 154 (2d Cir. 1988) (affirming summary judgment where plaintiff failed to rebut employer's justifications through specific facts contained in affidavits, deposition testimony or other admissible evidence). Additionally, plaintiff has failed to identify any similarly situated employees with comparable operating records who were afforded preferential treatment. In light of plaintiff's failure to produce any evidence of national origin discrimination or to rebut defendant's legitimate reasons for terminating him, the Court grants summary judgment on his claims for disparate treatment and retaliation, thereby dismissing this action in its entirety. Quinn v. Green Tree Credit Corp., 159 F.3d 759, 768-69 (2d Cir. 1998). The Clerk of the Court is directed to close this case.
Since plaintiff alleges that a single act, his termination on July 12, 2000, constitutes both discrimination and retaliation, his retaliation claim suffers from the same infirmities that undermine his discrimination claim. In addition, to the extent that Toriola bases his retaliation claim on the filing of his EEOC charge, the Court notes that Toriola filed his EEOC charge on December 21, 2000 after his termination on July 12, 2000. Consequently, his termination cannot be deemed retaliatory.
SO ORDERED.