Green v. New York City Transit Authority

Background

Tammy L. Green brought the action representing herself against the New York City Transit Authority (NYCTA) and Roosevelt I. Larrier. She alleged violations of Title VII of the Civil Rights Act, the New York State Human Rights Law, the New York City Human Rights Law, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Rehabilitation Act, the Equal Pay Act, the Fair Labor Standards Act, the Occupational Safety and Health Act, the Whistleblower Protection Act, and Executive Order 11246. In an earlier order, the court dismissed most of her twenty-three causes of action and allowed her gender-based discrimination claims, including hostile work environment and retaliation claims, to continue.

Green alleged that harassment increased after her consensual relationship with Larrier, who was one of her supervisors, ended. Her allegations included insults by co-workers, physical intimidation by Larrier, unwanted pornographic text messages, propositions for sex, unwanted touching, alleged interference with her belongings, and an incident in which a co-worker named “Levy” swung an axe near her head and face. She also alleged that she was denied overtime, passed over for promotions, lost pay after unauthorized absences, and moved from the East 180th Street assignment to the Corona Yard assignment because of the harassment.

Green filed an intake questionnaire with the Equal Employment Opportunity Commission (EEOC) on July 21, 2015. The EEOC issued a dismissal and notice of right to sue on September 16, 2015, and Green filed this lawsuit on October 16, 2015. After discovery ended, the defendants moved for summary judgment, which asks whether the evidence shows there is no genuine factual dispute requiring a trial and whether the moving party is entitled to judgment under the law.

Hostile Work Environment Claims

The court held that Green’s Title VII claims were timely enough for the court to consider earlier harassment under the continuing-violation doctrine because at least one act contributing to the alleged hostile work environment—the axe incident—occurred within the filing period. The court also held that the harassment connected to Green’s relationship with Larrier was sufficiently related to the allegations presented to the EEOC. However, the court concluded that some later incidents were not administratively exhausted because Green did not show that they were retaliation for filing the EEOC charge or were carried out in precisely the same manner as the conduct described in that charge.

For the federal Title VII and New York State Human Rights Law hostile-work-environment claims, the court found that a reasonable jury could view the alleged conduct as severe and frequent enough to create an abusive workplace. Nevertheless, the court granted summary judgment for the NYCTA based on the Faragher/Ellerth defense. That defense can protect an employer from liability for supervisor harassment when the employer took reasonable steps to prevent and correct harassment and the employee unreasonably failed to use those procedures. The court found that the NYCTA had anti-harassment policies, annual training, and a complaint procedure, and that Green generally did not report the alleged harassment to the NYCTA.

The court applied the same defense to the New York State Human Rights Law claim and dismissed the Title VII and New York State claims against the NYCTA. The court explained that the defense does not apply to New York City Human Rights Law claims. Because Larrier and another supervisor had authority to write Green up or take her out of service, the court held that the NYCTA could be strictly liable under the New York City law for their alleged conduct. The court denied summary judgment on Green’s New York City hostile-work-environment claim. It also concluded that Larrier could potentially face individual liability under the New York State and New York City laws because he allegedly participated in the conduct.

Gender Discrimination Claims

The court granted summary judgment on Green’s Title VII and New York State gender-discrimination claims. Green identified four possible adverse employment actions: not receiving overtime, losing pay for unauthorized absences, not receiving a promotion, and transferring from East 180th Street to Corona Yard. The court stated that these actions were either outside the applicable time period or, assuming they could be considered, were supported by legitimate, nondiscriminatory explanations. Those explanations included a seniority-based overtime system, the NYCTA’s policy concerning unauthorized absences, Green’s sick-leave and disciplinary records, and Green’s own decision to select the Corona Yard assignment.

The court denied summary judgment on Green’s New York City Human Rights Law gender-discrimination claim. That law requires a showing that the plaintiff was treated less well because of gender and permits liability even when the challenged conduct is not a tangible employment action. The court found that Green had presented allegations of differential treatment—including unwanted touching, pornographic messages, and the axe incident—that a reasonable jury could find were based on gender.

Retaliation Claims

The court dismissed Green’s retaliation claims under Title VII, the New York State Human Rights Law, and the New York City Human Rights Law. For the federal and state claims, the court found that the alleged adverse actions were either time-barred or unexhausted, and that the defendants had legitimate reasons for the actions. The two suspensions occurred after unauthorized absences and under the NYCTA’s policy, and the court found that their timing did not support an inference that they were retaliation for Green’s EEOC complaint or lawsuit.

For the New York City retaliation claim, the court applied that law’s broader standard but reached the same result. It found that the actions Green identified—including the suspensions, overtime assignments, job-location choice, and promotion decisions—were based on legitimate reasons and were not conduct reasonably likely to deter a person from opposing discrimination.

Disposition

The court granted the defendants’ motion for summary judgment in part and denied it in part. It dismissed Green’s Title VII and New York State Human Rights Law hostile-work-environment claims, her Title VII and New York State gender-discrimination claims, and all of her retaliation claims. Her New York City Human Rights Law hostile-work-environment and gender-discrimination claims survived. The court stated that the case was ready for trial and ordered Green to notify the court within 21 days whether she wanted the court to appoint volunteer counsel for the surviving claims.