Chenn v. MTA-New York City Transit Authority

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

JUNE-ANNETTE CHENN and

SANDRA BONNICK,

MEMORANDUM AND ORDER

Plaintiffs,

Case No. 20-CV-2827 (FB) (JAM)

-against-

MTA-NEW YORK CITY TRANSIT

AUTHORITY, MANHATTAN AND

BRONX SURFACE TRANSIT

OPERATING AUTHORITY, and

GREGORY GEORGE,

Defendants.

Appearances: For the Defendants:

For the Plaintiff: GENA B. USENHEIMER

LAINE A. ARMSTRONG VICTORIA VITARELLI

Advocates for Justice, Chartered Seyfarth Shaw LLP

Attorneys 620 Eighth Avenue

225 Broadway, Suite 1902 New York, NY 10018

New York, NY 10007

BLOCK, Senior District Judge:

Plaintiffs June-Annette Chenn (“Chenn”) and Sandra Bonnick (“Bonnick”)

(collectively, “the Plaintiffs”) brought an employment discrimination action for

failure to promote against Defendants MTA-New York City Transit Authority

(“NYCTA”), Manhattan and Bronx Surface Transit Operating Authority

(“MaBSTOA”) (collectively, “Transit”) and NYCTA Executive Assistant General

Counsel Gregory George (“George”), all of whom have moved for summary

judgment. For the following reasons, Defendants’ motion is GRANTED in part and

DENIED in part.

I. BACKGROUND

The following facts are taken from the pleadings, the parties’ Rule 56.1

statements, and the supporting documentation. The facts are undisputed unless

otherwise noted. The Court construes all evidence in the light most favorable to

the nonmoving party, drawing all inferences and resolving all ambiguities in that

party’s favor. See LaSalle Bank Nat. Ass’n v. Nomura Asset Cap. Corp., 424 F.3d

195, 205 (2d Cir. 2005).

During the relevant period, Chenn, a 56-year-old Asian woman, was

employed by the NYCTA as an attorney in the Kings Examination and Practice

Unit (“Kings Pre-Trial Unit”) for 28 years, and Bonnick, a 58-year-old African-

American woman, was a litigator employed by MaBSTOA for around four years.

In September 2017, NYCTA posted a Job Vacancy Notice (“JVN”) for an

Assistant General Counsel II (“AGC II”) position in the NYCTA Bronx Tort

Division to manage litigation, with an emphasis on pre-trial litigation. The AGC II

would report to George. Both Chenn and Bonnick applied for the position in

November 2017.

Head of the Torts Division Lawrence Heisler (“Heisler”), George, and

several others on a panel conducted interviews of six people total, including the

two Plaintiffs and Jerry Granata (“Granata”), a 33-year-old white man. In March

2018, Plaintiffs learned from George that Transit had selected Granata for the ACG

II position. Plaintiffs allege that they were both highly qualified for the position,

but Granata had “far inferior qualifications.” Compl. ¶ 33.

In January 2019, both Plaintiffs filed charges of discrimination with the U.S.

Equal Employment Opportunity Commission (“EEOC”), which issued right-to-sue

letters in April 2020. Plaintiffs commenced this action in June 2020, alleging race,

sex/gender, and age discrimination pursuant to 42 U.S.C. § 1981, 42 U.S.C.

§ 1983, 42 U.S.C. § 2000e (“Title VII”), et seq., 29 U.S.C. § 621 (“ADEA”), et

seq., the New York State Human Rights Law (“NYSHRL”), and the New York

City Human Rights Law (“NYCHRL”).

II. DISCUSSION

A. Statute of Limitations for Title VII and ADEA Claims

Defendants argue that because Plaintiffs failed to file discrimination charges

with the EEOC within the three-hundred-day window, their Title VII and ADEA

claims are time-barred. As Plaintiffs learned of the decision to promote Granata on

March 13, 2018, they had to file a charge with the EEOC by January 7, 2019.

While Plaintiffs did send the EEOC a letter dated and signed on that day, they

could not use the online EEOC Public Portal due to a federal government

shutdown. The EEOC received the charge via mail on January 11, 2019.

Whether “an administrative claim is deemed to be ‘filed’ on the date on

which the plaintiff puts it in the mail or on the date on which it is stamped

‘received’ by the applicable administrative agency” is an open question in the

Second Circuit, although the Circuit’s district courts have often held that a charge

is filed when the “EEOC receives the charge and stamps it with the appropriate

date.” See Pearson v. City of New York, No. 20-CV-3592 (RA), 2021 WL

2894776, at *4 (S.D.N.Y. July 9, 2021) (internal quotations omitted) (collecting

cases). Regardless of the proper standard and whether the Plaintiffs complied with

the EEOC’s ambiguous guidance during the government shutdown,1 Plaintiffs

could not use the EEOC Public Portal because of the government shutdown; had

they been able to, the EEOC would have received their charge on January 7. And

notwithstanding the date the EEOC received the charges, it issued Plaintiffs a

right-to-sue letter.

Because of the extraordinary circumstances of the government shutdown,

the apparent lack of prejudice to the EEOC’s ability to investigate, and Plaintiffs’

1 While the EEOC noted that the time limits for filing a charge of discrimination

may not be extended because of the shutdown, it states, “[i]f you are within 30

days of your time expiring, you may file a charge by sending us a letter, which

must be dated and signed in writing.” Plaintiffs argue that they complied with this

guidance by mailing their letter on the day the time limit expired.

reasonable diligence in mailing the letters the day the window lapsed, the Court

will not penalize Plaintiffs for the shutdown and deems the claims equitably tolled.

See Zerilli-Edelglass v. New York City Transit Auth., 333 F.3d 74, 80-81 (2d Cir.

2003), as amended (July 29, 2003) (“a district court must consider whether the

person seeking application of the equitable tolling doctrine (1) has acted with

reasonable diligence during the time period she seeks to have tolled, and (2) has

proved that the circumstances are so extraordinary that the doctrine should apply”)

(internal quotations omitted).

B. Failure-to-Promote Claims

Plaintiffs clarify that their sole claims are on a failure-to-promote theory and

that they have abandoned their §§ 1981/1983 claims against Transit. In addition,

the Court summarily dismisses the § 1981 claim against George because § 1983

provides the exclusive remedy against state actors for race discrimination. See

Duplan v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018) (Ҥ 1981 does not

provide a separate private right of action against state actors.”); Gonzalez v. City of

New York, 377 F. Supp. 3d 273, 284 (S.D.N.Y. 2019) (applying Duplan to claims

against individual municipal employee-defendants in their individual capacity).

1. The McDonnell Douglas Burden-Shifting Framework

The familiar, three-part McDonnell Douglas burden-shifting framework

governs Plaintiffs’ race, sex/gender, and age claims under Title VII, ADEA, the

NYSHRL, and the NYCHRL.2 See Bucalo v. Shelter Island Union Free Sch. Dist.,

691 F.3d 119, 128 (2d Cir. 2012) (citing McDonnell Douglas Corp. v. Green, 411

U.S. 792 (1973)); Dixon v. Int’l Fed’n of Accountants, 416 F. App’x 107, 109 (2d

Cir. 2011) (applying framework to Title VII, ADEA, and NYSHRL claims).

i. Prima Facie Case

First, Plaintiffs successfully state a “minimal” prima facie case, see St.

Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993), by showing that they “(1)

are members of a protected class, race, gender/sex, and age; (2) were qualified for

the position at issue; (3) were denied the position; and (4) that the circumstances of

2 While NYCHRL claims are also governed by McDonnell Douglas, “courts must

analyze NYCHRL claims separately and independently from any federal and state

law claims, construing the NYCHRL’s provisions broadly in favor of

discrimination plaintiffs.” Spires v. MetLife Grp., Inc., No. 21-2014, 2023 WL

545350, at *1 (2d Cir. Jan. 27, 2023) (failure to promote claim) (quoting Mihalik v.

Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013)). In

other words, courts must generally undertake an independent analysis of NYCHRL

claims, separate and apart from the state and federal claims. However, in this case,

the Court need not separately analyze the NYCHRL claims because it finds that

Plaintiffs have defeated summary judgment under the federal and state statutes that

impose a more exacting burden on them. Cf. Hernandez v. Kaisman, 957 N.Y.S.2d

53, 58 (1st Dep’t 2012) (concluding that complained-of conduct was actionable

under the NYCHRL, but not the NYSHRL). For the sake of completeness, the

Court will note in passing the relevant NYCHRL standards while considering all

the claims together.

the adverse employment decision give rise to an inference of discrimination.”

Mandell v. Cty. of Suffolk, 316 F.3d 368, 377 (2d Cir. 2003). For the last element,

Plaintiffs successfully establish an inference of discrimination by showing that the

employer filled the position with “a person outside the protected class who was

similarly or less qualified than the plaintiff.” See Yu v. New York City Hous. Dev.

Corp., 494 F. App’x 122, 125, n.4 (2d Cir. 2012) (cleaned up); see also Mitchell v.

N. Westchester Hosp., 171 F. Supp. 2d 274, 278 (S.D.N.Y. 2001) (“This inference

[of discrimination] can be established if the Plaintiff shows that the position sought

went to a person outside his protected class.”).

ii. Legitimate Business Reason

Second, Defendants meet their burden by proffering a legitimate, non-

discriminatory business reason for promoting Granata over Plaintiffs, that

“Granata, among other strengths, had a demonstrated record of embracing and

implementing George’s model for running E&P and would continue to facilitate

further improvements in the Unit.” Defs’ Mem. L. Supp. Mot. Dismiss 18.

iii. Pretext

At the third phase of McDonnell Douglas, the burden shifts back to Plaintiffs

to provide sufficient evidence showing that the reason proffered by the Defendants

was pretextual, subject to the applicable causation standard under each statute. See

Naumovski v. Norris, 934 F.3d 200, 214 (2d Cir. 2019). For Title VII, race and

gender/sex claims under the NYSHRL, and the NYCHRL,3 plaintiffs must show

the “employer’s stated non-discriminatory reason was not the exclusive reason for

the adverse employment action”; for age discrimination under the ADEA and the

NYSHRL,4 the plaintiff “must establish that the employer’s stated reason would

not, alone, constitute a sufficient basis for pursuing an adverse action.” See

Naumovski v. Norris, 934 F.3d 200, 214-15 (2d Cir. 2019). Of course, a plaintiff

need not establish that the improper consideration was the only but-for cause, as

there can be — and often are — “multiple but-for causes” for an adverse

employment action. Bostock v. Clayton Cnty., Georgia, 140 S. Ct. 1731, 1739

(2020).

The plaintiff must present evidence that “supports a sufficient rational inference

of discrimination.” See Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.

2000). Typically, however, because “[e]mployers are unlikely to leave a ‘smoking

3 These statutes require a plaintiff to establish that an improper consideration was a

“motivating factor” for the adverse employment action. See 42 U.S.C. §§ 2000e–

2(m) and 2000e-5(g)(2)(B); Syeed v. Bloomberg L.P., 568 F. Supp. 3d 314, 321

(S.D.N.Y. 2021) (the NYSHRL’s motivating factor standard “appears to be

‘equivalent to’ the standard” for the NYCHRL).

4 These statutes employ the “but-for” causation standard. See Gross v. FBL Fin.

Servs., Inc., 557 U.S. 167, 177 (2009) (but-for causation for age discrimination

claims under the ADEA); Boonmalert v. City of New York, 721 F. App’x 29, 32

(2d Cir. 2018) (assuming, without deciding, that but-for causation is required for

age discrimination under the NYSHRL). Individual claims against public officials

under § 1983 also require but-for causation. See Naumovski v. Norris, 934 F.3d

200, 213 (2d Cir. 2019) (§ 1983 requires but-for causation).

gun’ admitting a discriminatory motive,” see Kallinikos v. New York State Dep’t of

Corr. & Cmty. Supervision, 481 F. Supp. 3d 76, 85 (E.D.N.Y. 2020), the Court

must carefully “review the record ‘taken as a whole.’” See Reeves v. Sanderson

Plumbing Prod., Inc., 530 U.S. 133, 150 (2000). And in discrimination cases, “the

inquiry into whether the plaintiff’s sex (or race, etc.) caused the conduct at issue

often requires an assessment of individuals’ motivations and state of mind, matters

that call for a ‘sparing’ use of the summary judgment device because of juries’

special advantages over judges in this area.” See Brown v. Henderson, 257 F.3d

246, 251 (2d Cir. 2001).

Plaintiffs successfully raise a material issue of fact as to whether Defendants

discriminated against Plaintiffs with several types of evidence. See, e.g., Ellis v.

Century 21 Dep’t Stores, 975 F. Supp. 2d 244, 272 (E.D.N.Y. 2013) (“A plaintiff

may show pretext by illuminating such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the employer’s proffered

reasons that would raise doubt in the factfinder’s mind that the employer did not

act for those reasons.”).

A. Evidence Regarding the Applicants’ Relative Qualifications

First, Plaintiffs raise a material issue of fact about the qualifications for the

position. Plaintiffs contend that their credentials were far superior to Granata’s. A

plaintiff may prevent summary judgment based on the discrepancy in

qualifications alone, although this burden is “weighty” and requires “the plaintiff’s

credentials . . . to be so superior to the credentials of the person selected for the job

that no reasonable person, in the exercise of impartial judgment, could have chosen

the candidate selected over the plaintiff for the job in question.” Byrnie v. Town of

Cromwell, Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001), superseded in part and

on other grounds by Fed. R. Civ. P. 37(e) (internal quotations omitted); see also

Martinez v. City of Stamford, No. 22-702-CV, 2023 WL 3162131, at *2 (2d Cir.

May 1, 2023) (applying this standard in a failure-to-promote case). However, even

if a plaintiff cannot meet her burden on this issue alone, this discrepancy is still

probative, as a “reasonable trier of fact is entitled to find that it does bear on the

credibility of the employer which must finally be evaluated from the perspective of

the entire record.” Byrnie, 243 F.3d at 104.

On paper, it appears that both Plaintiffs had superior credentials to Granata.

At the time of the hiring, Granata had been practicing law for roughly seven years

— six as an associate attorney at private law firms and around one-and-a-half years

at Transit. By contrast, Bonnick had around twenty-two years of legal experience,

including thirteen years as a partner in private practice and around four years at

Transit; Chenn had twenty-four years of legal experience, including about twenty-

one years at Transit. According to Chenn, George admitted that Granata had

“nothing” over her, see Chenn Dep. 36:23-37:6, and that George, like Granata,

“wasn’t the most qualified attorney for that job and the other people who

interviewed were more qualified than him,” id. at 185:10-13. While the Court is

reluctant to conclude that no reasonable person could have selected Granata over

Plaintiffs, the discrepancy in their qualifications can be probative of

discrimination. See Walsh v. New York City Hous. Auth., 828 F.3d 70, 78 (2d Cir.

2016). Here, “it is up to the trier of fact, not the Court at summary judgment, to

weigh [the] respective qualifications and decide what inferences to draw.”

Oliphant v. Caldwell, 212 F. Supp. 3d 480, 487 n.7 (S.D.N.Y. 2016).

Relatedly, there is a disputed issue of material fact as to whether Granata

met the minimum qualifications of the AGC II position, which required “two years

(2) of managerial or equivalent supervisory experience.” As Granata worked at

Transit for only a year and a half at the time he applied, he could not have met the

minimum requirement there — in fact, Plaintiffs present evidence that Granata did

not have managerial or equivalent supervisory experience in his role as Agency

Attorney III at Transit. See Granata Dep. 46:18-48:17 (stating that he was not

responsible for managing or supervising anyone “on paper” and that he did not

know if his experience counted as “managing or supervising or working

situation”).

Additionally, Plaintiffs present evidence that before he joined Transit,

Granata did not have a supervisory or managerial role in positions as an associate

attorney for two private law firms. Specifically, they point to Granata’s deposition,

where he characterizes his purported supervisory or managerial experience as more

akin to an informal mentorship role. See id. at 100:4-101:11 (describing his role

being one of “the people [new associates] go to with [their] questions” and

reviewing billing). Plaintiffs thus raise a material issue of fact as to whether

Granata met the managerial or supervisory experience requirement.5 See, e.g.,

Oliphant, 212 F. Supp. 3d at 487 (S.D.N.Y. 2016) (“plaintiff has put forth evidence

that neither Fredericks nor Wager were minimally qualified to be case

supervisors”); Mann v. Mass. Correa Elec., J.V., No. 00 CIV. 3559 (DLC), 2002

WL 88915, at *3 (S.D.N.Y. Jan. 23, 2002) (Plaintiff “has raised issues of fact

regarding whether [promoted employee] was qualified for the position to which he

was promoted.”).

B. Evidence Contradicting Stated Non-Discriminatory Reasons

Plaintiffs have also put forth sufficient evidence from which a reasonable

jury could conclude that Defendants’ proffered explanation is pretextual. See

5 Defendants state that a separate department was responsible for screening

applicants to determine whether they met the position’s minimum qualifications

prior to interview selection. Even if the appropriate department did determine that

Granata was qualified — and setting aside Plaintiffs’ contention that Heisler and

George had pre-selected Granata before the JVN was posted, and thus before they

could confirm that he met the minimum qualifications — Granata’s limited

supervisory and managerial experience would nonetheless buttress Plaintiffs’

argument about the applicants’ discrepancies in qualifications.

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147-48 (2000) (“In

appropriate circumstances, the trier of fact can reasonably infer from the falsity of

the explanation that the employer is dissembling to cover up a discriminatory

purpose.”). Here, Defendants rely on subjective criteria, such as Granata’s desire

to “make change” and implement George’s vision. While there is “nothing

unlawful about an employer’s basing its hiring decision on subjective criteria,”

these criteria do not protect the employer “against attacks on its credibility.” See

Byrnie, 243 F.3d at 105 (2d Cir. 2001) (internal quotations omitted). Otherwise,

“[w]ere it enough for an employer to simply assert that it favored candidate A, who

is not a member of a protected group, over candidate B, who is a member of a

protected group, many cases of latent discrimination would go undetected and

unpunished.” See Garcia v. Regan, No. 19-CV-8482 (LJL), 2022 WL 912234, at

*10 (S.D.N.Y. Mar. 28, 2022).

Challenging Transit’s credibility, Plaintiffs raise a disputed issue of fact as

to whether Transit pre-selected Granata for the job before it posted the JVN, which

would undermine Transit’s explanation that it did not promote Plaintiffs in part

because of their interview performances. In her deposition, Director of Personnel

and Budget for Transit’s Law Department Helen Smart stated that, based on her

conversation with Heisler, she believed Heisler had selected Granata for the job

even before the JVN was posted and thus before Plaintiffs applied. Smart. Dep.

65:16-66:21. If true, Smart’s deposition suggests that Defendants never actually

considered Plaintiffs for the job since they had pre-selected Granata, thereby

undermining Transit’s narrative and its credibility.

Defendants explicitly dispute that Heisler pre-selected Granata before the

JVN was posted and argue, in the alternative, that even if Heisler did, this fact

would not establish evidence of discrimination or pretext. While pre-selection

alone is generally not enough to raise an inference of discrimination, see During v.

City Univ., 01 Civ. 9584(BSJ), 2005 WL 2276875, at *7 (S.D.N.Y. Sept. 19,

2005), it would undermine Transit’s stated explanation and could suggest a

departure from Transit’s usual hiring procedures. See Reeves, 530 U.S. at 147

(2000) (“Proof that the defendant’s explanation is unworthy of credence is simply

one form of circumstantial evidence that is probative of intentional discrimination,

and it may be quite persuasive.”); Stern v. Trustees of Columbia Univ. in City of

New York, 131 F.3d 305, 313 (2d Cir. 1997) (selecting candidate without following

usual procedures raises inference that proffered reasons were not the real reasons).

Additionally, Plaintiffs claim that when George informed Chenn that

Granata received the promotion, George stated Granata did so because Granata

was “like [George]” and “very similar” to him. See Chenn Dep. 38:21-39:10;

184:2-25 (“he said that he and Jerry were very similar”). Plaintiffs argue that this

statement is evidence of discrimination, as Chenn interpreted this comment to

mean that Granata received the promotion because both George and Granata are

younger, white men. Defendants dispute that George made this statement.

Whether George made this admission “require[s] a credibility determination

that is the province of a jury.” See Cipriano v. Forest Pharms., Inc., No. 3:16-CV-

01641 (JCH), 2018 WL 11078642, at *8 (D. Conn. Sept. 4, 2018); Ellis v. Century

21 Dep’t Stores, 975 F. Supp. 2d 244, 274 (E.D.N.Y. 2013) (although co-CEO of

defendant company denies making allegedly gender-based statement, “the parties’

dispute creates an issue of fact that must be decided by the jury”) (citing cases). It

is for a jury to interpret the credibility of the witnesses and determine, if George

did make the statement, whether it was probative of discrimination.

In sum, through the above evidence, Plaintiffs have offered sufficient

evidence for a jury to reasonably conclude that Transit’s decision to promote

Granata, a much less-experienced attorney, over Plaintiffs, was discriminatory.

2. George’s Individual Liability Under § 1983, NYSHRL, and NYCHRL

Defendants move to dismiss the claims against George on the grounds that

he did not participate directly in the alleged discriminatory conduct. Under § 1983,

an individual can be liable if he is “personally involved in the alleged deprivation,”

proximately caused the constitutional deprivation, and engaged in intentional

discrimination on the basis of a protected characteristic.6 See Littlejohn v. City of

New York, 795 F.3d 297, 314 (2d Cir. 2015). Under both the NYSHRL and

NYCHRL, individual liability attaches if a supervisor “actually participates in the

conduct giving rise to the discrimination” or any person who “aids, abets, incites,

compels, or coerces the doing of any acts forbidden” under the statutes. See

Feingold v. New York, 366 F.3d 138, 157 (2d Cir. 2004) (holding that same

standards under the NYCHRL and NYSHRL apply and reversing grant of

summary judgment as to individual defendants).

Because there is evidence that George was personally involved in the

allegedly discriminatory decision, see Heisler Dep. 46:10-16 (“But in practice, I

listened to the manager to whom Jerry [Granata] had to report,” i.e., George);

Reid-Green Dep. 79:10-15 (George spoke favorably of Granata during interview

process), there is a jury question as to whether George is liable for the decision not

to promote Plaintiffs based on unlawful protected categories. See, e.g., Oliphant,

212 F. Supp. 3d at 488 (denying summary judgment on § 1983 claim against

plaintiff’s supervisor).

6 Plaintiffs do not state explicitly whether they bring their claims against George in

his individual or official capacity, but as they clarify that they are not bringing any

Monell claims and argue that George violated § 1983 through his “personal

involvement,” it is clear to the Court that Plaintiffs bring individual-capacity

claims against George.

III. CONCLUSION

For the foregoing reasons, Defendants’ motion for summary judgment is

granted in part and denied in part. A jury will determine whether Transit

discriminated on the basis of race, gender/sex, or age in failing to promote

Plaintiffs and whether George was personally involved in that discrimination.

SO ORDERED.

__/S/ Frederic Block__________

FREDERIC BLOCK

Senior United States District Judge

Brooklyn, New York

December 26, 2023