# Walker v. Metro North Commuter Railroad

> District Court, S.D. New York · September 23, 2024

URL: https://www.frixlaw.com/law-library/cases/10662723

## Case

- **Court:** District Court, S.D. New York
- **Decided:** September 23, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10662723

## How later opinions describe it (automated extraction)

- holding A. Disparate Treatment Metro-North first moves to dismiss Walker’s Title VII discrimination claim, arguing that Walker has failed to plead facts that would raise an inference of racial discrimination by Metro- North. (ECF No. 7 (“Mem.”) at 7-8.
- holding that an employee who was allegedly left off a promotion list that management relied upon because of his race was still “qualified” for the promotion for the purposes of a McDonnell Douglas analysis

## Opinion text

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

JESSE L. WALKER,
Plaintiff,
23-CV-9883 (JPO)
-v-
OPINION AND ORDER
METRO NORTH COMMUTER
RAILROAD,
Defendant.

J. PAUL OETKEN, District Judge:
Plaintiff Jesse L. Walker, Jr., proceeding pro se, brings this action against Defendant
Metro-North Commuter Railroad (“Metro-North”). Walker, a current employee, contends that
Metro-North violated Title VII by refusing to promote him, consistently assigning him less
desirable projects, pursuing made-up disciplinary charges against him, and creating a hostile
environment. Before the Court is Metro-North’s motion to dismiss for failure to state a claim.
For the reasons that follow, the motion is denied.
I. Background
A. Factual Background
The following facts are drawn from Walker’s first amended complaint (ECF No. 4
(“FAC”)), and opposition to Metro-North’s motion to dismiss (ECF No. 9 (“Opp.”)),1 and are
assumed to be true for the purposes of resolving this motion. See Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 76 (2d Cir. 2015).

1 “A district court deciding a motion to dismiss may consider factual allegations made by
a pro se party in his papers opposing the motion.” Walker v. Schult, 717 F.3d 119, 122 n.1 (2d
Cir. 2013). Because Walker is proceeding pro se, the Court will consider facts raised in his
opposition to the motion to dismiss and attached exhibits.
Walker has worked for Metro-North for the past nineteen years. (Opp. at 2.)2 Before
joining Metro-North, he was a service member in the United States Air Force, where he
specialized in “Cryptographic Secure Communications.” (Id.) He also has technical training
from the New Jersey Institute of Technology, where he has taken over 90 credits, and “Newark
College of Engineering’s Electrical Engineering Curriculum.” (Id.)

Since April 2017, Walker alleges that he has “essentially been taken out of the day to day
more technical jobs” and is instead consistently assigned to a less desirable project the team
members refer to as “troubles.” (Id. at 4.) “Troubles” are calls that involve “personnel phone
issues, radio problems, computer wiring issues,” and other less technical assignments. (Id.)
Walker’s manager, Ray Peters, has acknowledged that being on troubles is “a less than desirable
job.” (Id.) To discipline employees, Peters would assign them to troubles. (See id.) Further,
Walker alleges, Peters would “continuously and without fail” assign Walker and other Black
employees to troubles, while new employees of other races were given more technical and
desirable projects. (FAC at 8; Opp. At 4; see also FAC at 5.)

Walker often felt targeted by Peters. (See FAC at 5.) When Walker was assigned to
troubles and identified a problem, Peters would “have [Walker] stop working on it and wait until
someone else was available to work on it.” (Opp. at 4.) On one occasion, even though Walker
had followed the usual troubles protocol of waiting for an official report to begin work on a new
project, Peters “became belligerent” with Walker and told him: “I told you there was a fucking
trouble at 8:30AM.” (Id. at 5.) After Walker explained to Peters that he was following protocol,
Peters “continued and repeatedly returned to [Walker’s] desk to chastise [him].” (Id.) On

2 For ease of reference, the Court refers to the page numbers automatically generated by
ECF at the top of each filing.
another occasion, in the wake of the killing of George Floyd, Walker used the television in the
conference room to watch the news. (Id. at 4.) Peters then, “without explanation,” forbade
employees from turning on the television during the workday. (Id.) Walker alleges that Peters
shut down the television privileges because Walker was the one watching. (Id.)
After the outbreak of the COVID-19 pandemic, Walker experienced issues with Peters,

John Carr (Walker’s direct supervisor), and others in the office refusing to wear masks. (Id. at 4,
7.) Walker alleges that these coworkers “all have that Proud Boy mentality.” (Id. at 7.) In
November 2020, Walker, frustrated by Peters and those who refused to wear masks in the office,
wrote “MASKS” on the office dry erase board to remind everyone to wear protection. (See id. at
4-5.) In response, Peters walked into the communal office space where Walker was working “to
unleash a barrage of unfounded complaints in an attempt to belittle [Walker] in the presence on
the other shop members.” (Id. at 5.) During this incident, Peters yelled “I’m tired of this fucking
shit!” in front of everyone in the shop. (Id. (capitalization altered).) Walker remembers Peters
yelling at him “like a drill sergeant” (id. at 5) and “coming at [him] like a rabid animal” (id. at 7).

During this altercation, Peters was standing “one foot away from [Walker’s] face with no mask.”
(Id.) Walker reported this incident to the Deputy Director of Diversity and EEO on November
30, 2020. (Id. at 7-8.)
After Walker reported Peters for another infraction, Peters retaliated against Walker for
notifying higher-ups. (Id. at 5.) Walker alleges that when he would file a complaint against
Peters, “[Peters] would pull all the shop[’]s personnel into the conference room” to announce
what had happened “so the entire shop would look down upon [Walker] in a certain fashion.”
(Id.)
In 2021, the Communications Supervisor of the Grand Central Terminal position became
available. (FAC at 5.) According to Walker, “Ray Peters and others . . . started a campaign to
disqualify” him from being considered for this promotion. (Id. (cleaned up).) This included
Peters twice filing “fraudulent disciplinary charges” to ensure Walker would not be considered
for the position. (Id.) Both times, Walker was “found guilty within the internal . . . Metro-North
judicial system” (id.), and, due to these proceedings, was suspended without pay (see id. at 15).

Ultimately, Walker was not promoted to Communications Supervisor, and his career was
“derail[ed].” (See id. at 5, 15.)
Walker states that: “Ray Peters . . . hates me for my race, my knowledge, and my
intelligence.” (ECF No. 9-2 at 2 (cleaned up).)
B. Procedural History
Walker commenced this action on November 8, 2023 (ECF No. 1), and he amended his
complaint on November 15, 2023 (FAC). Metro-North filed a motion to dismiss the amended
complaint for failure to state a claim on December 19, 2023. (ECF No. 6.) Walker filed an
opposition to Metro-North’s motion on January 15, 2024 (ECF No. 9), and Metro-North replied
in support of its motion on January 29, 2024 (ECF No. 10).

II. Legal Standard
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, the plaintiff must state “enough facts to state a claim to relief that is plausible on its
face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Such a claim is plausible “when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In
ruling on a motion to dismiss, the Court must accept as true all factual allegations in the amended
complaint, “drawing all reasonable inferences in favor of the plaintiff.” Koch v. Christie’s Int’l
PLC, 699 F.3d 141, 145 (2d Cir. 2012).
Ultimately, “[t]he plausibility standard is not akin to a probability requirement.” Iqbal,
556 U.S. at 678 (internal quotation marks omitted). At this stage, “the question is not whether a
plaintiff is likely to prevail, but whether the well-pleaded factual allegations plausibly give rise to
an inference of unlawful discrimination, i.e., whether plaintiffs allege enough to ‘nudge their
claims across the line from conceivable to plausible.’” Vega, 801 F.3d at 87 (quoting Twombly,

550 U.S. at 570) (cleaned up).
Walker is litigating his case pro se. “It is well established that the submissions of a pro
se litigant must be construed liberally and interpreted to raise the strongest arguments that they
suggest.” Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020). As such, “a pro se
complaint, however inartfully pleaded, must be held to less stringent standards than formal
pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks omitted). All of this being true, “a pro se complaint must state a plausible claim for
relief.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013).
III. Discussion
Metro-North has moved to dismiss Walker’s complaint, contending that Walker has

failed to adequately allege disparate treatment, retaliation, or a hostile work environment under
Title VII. Further, Metro-North argues it cannot be subject to punitive damages as a public
benefit corporation, and that the Court should exercise its discretion in issuing a stay pending
arbitration of Walker’s disciplinary actions by the National Railroad Adjustment Board.3

3 Metro-North also moves to dismiss pursuant to Rule 8 because “[Walker’s] vague and
conclusory allegation does not provide Metro-North adequate notice of his claims and the
opportunity to defend itself.” (ECF No. 7 at 20.) While Walker included some vague phrases
about “fraudulent frame ups and systematic oppression” in his complaint (FAC at 8), his
Opposition to Metro-North’s Motion to Dismiss adequately alleges facts sufficiently targeted to
disparate treatment, retaliation, and hostile work environment claims under Title VII to provide
Metro-North with fair notice. See Boykin v. KeyCorp, 521 F.3d 202, 215 (2d Cir. 2008) (holding
A. Disparate Treatment
Metro-North first moves to dismiss Walker’s Title VII discrimination claim, arguing that
Walker has failed to plead facts that would raise an inference of racial discrimination by Metro-
North. (ECF No. 7 (“Mem.”) at 7-8.) Title VII, in relevant part, reads:
It shall be an unlawful employer practice for an employer—
(1) to fail or refuse to hire or to discharge any individual, or otherwise to
discriminate against 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; or
(2) to limit, segregate, or classify his employees or applicants for employment in
any way which would deprive or tend to deprive any individual of employment
opportunities or otherwise adversely affect his status as an employee, because of
such individual’s race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a).

Courts use the three-step McDonnell Douglas burden-shifting framework to analyze Title
VII disparate treatment claims. See Bart v. Golub Corp., 96 F.4th 566, 569-70 (2d Cir. 2024).
“A plaintiff’s first step under McDonnell Douglas is to establish a prima facie case of
discrimination by showing that ‘(1) she is a member of a protected class; (2) she is qualified for
her position; (3) she suffered an adverse employment action; and (4) the circumstances give rise
to an inference of discrimination.’” Id. (quoting Banks v. Gen. Motors, LLC, 81 F.4th 242, 270
(2d Cir. 2023)).
At the motion to dismiss stage, plaintiffs must only pass the first step, and “the prima
facie requirements are relaxed.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir.
2015). Specifically, “[t]he facts required by Iqbal to be alleged in the complaint need not give

that a plaintiff who identified “particular events giving rise” to her claims and who alleged that
“she was treated less favorably . . . because of her race” gave defendant adequate notice under
Rule 8 for federal civil rights claims).
plausible support to the ultimate question of whether the adverse employment action was
attributable to discrimination,” bur rather “need only give plausible support to a minimal
inference of discriminatory motivation.” Id. at 311; see also Mandala v. NTT Data, Inc., 975
F.3d 202, 208 (2d Cir. 2020) (“Over a series of opinions, we clarified that Iqbal does not require
a plaintiff to plead a prima facie case. Instead, it simply requires a plaintiff to assert enough

nonconclusory factual matter to nudge her claim across the line from conceivable to plausible to
proceed.’” (cleaned up)).
1. Protected Class
Metro-North does not contest that Walker adequately alleges the first prong of the prima
facie case of discrimination, that Walker, who is Black, is a member of a class protected under
Title VII. See 42 U.S.C. § 2000e–2(a) (enumerating “race” as a protected category).
2. Qualification For Positions
Because Walker is alleging disparate treatment hindering his current position and
prohibiting him from a promotion, he must “show[] that he was qualified” for his current job and
the Supervisor position he seeks. Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). There is
no question that Walker is qualified for his current position. See Carter v. Cornell Univ., 976 F.

Supp. 224, 231 (S.D.N.Y. 1997), aff’d, 159 F.3d 1345 (2d Cir. 1998). Walker has worked for
Metro-North for the past nineteen years (Opp. at 2) and has worked in the “Kitt Room” where he
works now throughout that entire time (ECF No. 9-2 at 4). Further, Metro-North does not
contest that Walker is qualified for his current job.
Walker also adequately alleges that he is qualified for the Supervisor position. Metro-
North states that “Walker was deemed ineligible for consideration [of the Supervisor position]
based on his recent discipline.” (Mem. at 10.) However, Walker is also alleging that this
discipline itself was disparate treatment prohibited by Title VII. (See FAC at 5). If Walker is
successful in convincing a jury that the disciplinary charges were racially motivated and thus
violated Title VII, Metro-North’s reasoning for Walker’s disqualification would no longer be
valid. See Terry, 336 F.3d at 138-39 (holding that an employee who was allegedly left off a
promotion list that management relied upon because of his race was still “qualified” for the
promotion for the purposes of a McDonnell Douglas analysis).

Walker has been a Metro-North employee for nearly two decades. (See Opp. at 2.)
Previously, he was a service member in the United States Air Force where he specialized in
“Cryptographic Secure Communications.” (Id.) He also has technical training from the New
Jersey Institute of Technology and “Newark College of Engineering’s Electrical Engineering
Curriculum.” (Id.) While the exact qualifications of the Supervisor position are not stated,
Metro-North notably did not contend that Walker was otherwise unqualified for the job beyond
the disciplinary charges at issue in this case. (See Mem. at 10.) Thus, Walker has adequately
alleged his qualifications to survive the initial step in the McDonnell Douglas framework.
3. Adverse Employment Actions
Next, Walker must identify adverse employment actions he experienced during his time

at Metro-North. Bart, 96 F.4th at 569-70. “A plaintiff sustains an adverse employment action if
he or she endures a materially adverse change in the terms and conditions of employment.”
Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006) (internal quotation marks omitted). “Examples
of materially adverse changes include . . . a less distinguished title, a material loss of benefits,
significantly diminished material responsibilities, or other indices unique to a particular
situation.” Joseph, 465 F.3d at 90 (quoting Terry, 336 F.3d at 138).
First, Walker alleges that he was denied the promotion to the Communications
Supervisor of the Grand Central Terminal. (FAC at 5.) The Second Circuit has made it clear
that “failure to promote” qualifies as an adverse employment action under Title VII. Banks v.
Gen. Motors, LLC, 81 F.4th 242, 269 (2d Cir. 2023) (collecting cases).
Second, Walker alleges that his boss filed false disciplinary charges against him. (FAC at
5.) A mere reprimand or threat of disciplinary proceedings without subsequent consequences is
not a materially adverse employment action. See Weeks v. New York State (Div. of Parole), 273

F.3d 76, 86 (2d Cir.). Here, however, there was ensuing punishment. Walker alleges that he was
found “guilty” in the disciplinary actions against him. (FAC at 5.) He further states, in his claim
for relief, that he has experienced “wages lost to suspension” due to “the false charges [on his]
employee record.” (FAC at 15.) Metro-North does not contest that Walker was suspended as a
result of these disciplinary proceedings. (See Mem. at 9-11 (“Walker was informed that he had
been found guilty of his charges and would receive a 15-day actual and 15-day deferred
suspension . . . .”).) Thus, because Walker has alleged material adversity stemming from the
disciplinary charges, they qualify as adverse employment actions for Title VII purposes.
Third, Walker alleges that he was consistently assigned to “troubles” rather than

permitted to work on technical assignments in the shop. (ECF No. 9-2 at 4.) To qualify as an
adverse employment action under Title VII, an action must be “more disruptive than a mere
inconvenience or an alteration of job responsibilities.” Terry, 336 F.3d at 138 (internal quotation
marks omitted). However, “significantly diminished material responsibilities” can qualify as an
adverse action. See id. Walker alleges that he has “essentially [been] taken out of the day to day
more technical jobs, issues and monitoring the system. While others have been trained on test
equipment and maintenance procedures [Walker has] been only assigned to troubles unless there
is no other option.” (ECF No. 9-2 at 4.) Walker is alleging more than just “a mere
inconvenience or an alteration of job responsibilities.” See Terry, 336 F.3d at 138. Being
consistently assigned to troubles, a job usually given as punishment to other employees (Opp. at
4), and missing out on opportunities to train and grow as a technically skilled employee has
“derail[ed] [his] career” and “[halted] [his] educational path within the company” (see FAC at
15). Because Walker adequately alleges that the troubles assignments had a materially adverse
impact on his career, this collectively qualifies as an adverse employment action.

4. Inference of Racial Discrimination
The final prong of the McDonnell Douglas prima facie case is whether Walker
adequately alleges an inference of racial discrimination in Metro-North’s actions. Bart, 96 F.4th
at 569-70. The Second Circuit “ha[s] characterized the evidence necessary to satisfy this initial
burden [of adequately alleging an inference of racial discrimination] as ‘minimal’ and ‘de
minimis.’” Zimmermann v. Assocs. First Cap. Corp., 251 F.3d 376, 380-81 (2d Cir. 2001)
(collecting cases). And the United States Supreme Court has stated that this burden “is not
onerous” on plaintiffs. Texas Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 253 (1981). Even
without actions by an employer that “directly indicate[] racial bias,” a sufficient “inference of
discrimination can arise from circumstances including . . . the more favorable treatment of

employees not in the protected group; or the sequence of events leading to the plaintiff’s
[adverse employment action].” Littlejohn, 795 F.3d at 312-13.
Walker surpasses the low threshold required of plaintiffs at this stage. Walker states that
his boss, Ray Peters, would “continuously and without fail” assign Walker and other Black
employees to less desirable projects while non-Black employees were given more technical and
in-demand jobs. (See Opp. at 4; FAC at 5, 8.) Further, Walker states that his boss “hates
[Walker] for [his] race” (ECF No. 9-2 at 2), and “levied false charges against [Walker] multiple
times to ensure [he] would not be promoted” (FAC at 5). Walker has also stated that Peters and
his direct supervisor, John Carr “have that Proud Boy mentality.”4 (ECF No. 9-1 at 1.) These
allegations point to a reasonable inference that racial discrimination motivated the adverse
employment actions taken against Walker.
Given the special solicitude afforded to pro se litigants and the low burden for Title VII
plaintiffs at this stage in litigation, Walker has met the “minimal burden of showing facts” that he

was a member of a protected class; was qualified for his position and the Supervisor position;
and experienced adverse employment actions by Metro-North’s refusal to promote him, its
consistent assignment of Walker to lower quality projects, and its disciplinary actions against
him. See Littlejohn, 795 F.3d at 311. Further, Walker adequately alleges facts showing an
“inference of discrimination” that motivated these actions. See id. at 312. Metro-North’s motion
to dismiss Walker’s disparate treatment claim is thus denied.
B. Retaliation
Metro-North next moves to dismiss Walker’s Title VII retaliation claim, arguing that
Walker did not participate in a protected activity and that he failed to draw a causal connection
between any alleged protected activity and an adverse employment action. (Mem. at 16.)

4 The Court may “take judicial notice of relevant matters of public record.” Giraldo v.
Kessler, 694 F.3d 161, 164 (2d Cir. 2012). The Court takes such notice of public allegations that
some members of the Proud Boys, “a right-wing extremist group,” harbor animosity against
Black people. See, e.g., Josh Campbell, Proud Boys members ordered to pay over $1 million in
‘hateful and overtly racist’ church destruction civil suit, CNN (July 1, 2023),
https://www.cnn.com/2023/07/01/politics/proud-boys-fined-ame-church-destruction/index.html
(reporting DC Superior Judge Neal Kravitz’s default judgment in a civil suit about the
destruction of property at a Black church in Washington, DC, writing that the group has “incited
and committed acts of violence against members of Black and African American communities
across the country”). The Court does not take notice of these allegations “for the truth of the
facts asserted,” but rather “to establish the existence of the opinion” that a person could
reasonably think having a “Proud Boy mentality” would include racial discrimination against a
Black man. See Glob. Network Commc’ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir.
2006).
Title VII retaliation claims are also analyzed under the McDonnell Douglas burden-
shifting framework. Hicks v. Baines, 593 F.3d 159, 164 (2d. Cir. 2010). To survive a motion to
dismiss a claim of retaliation under Title VII, “a plaintiff must show (1) participation in a
protected activity; (2) that the defendant knew of the protected activity; (3) an adverse
employment action; and (4) a causal connection between the protected activity and the adverse

employment action.” Bucalo, 691 F.3d at 129 (internal quotation marks omitted). “The term
‘protected activity’ refers to action taken to protest or oppose” activity prohibited under Title
VII, Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000), and includes “informal”
complaints, Littlejohn, 795 F.3d at 317. “To establish that [a plaintiff] engaged in protected
activity, [he] need not establish that the conduct [he] opposed was actually a violation of Title
VII, but only that [he] possessed a good faith, reasonable belief that the underlying employment
practice was unlawful under that statute.” Summa v. Hofstra Univ., 708 F.3d 115, 126 (2d Cir.
2013) (internal quotation marks omitted).
Walker alleges multiple instances where he “opposed” activity by his boss that he

believed was a violation of his civil rights. In November of 2020, Walker reported his manager,
Peters, for “exhibit[ing] negative bias against [Walker]” to Metro-North’s Deputy Directory of
Diversity and Equal Employment Opportunity (“EEO”). (ECF No. 9-1 at 1.) Walker wrote to
the Deputy: “He thinks he has the right to speak to me in any tone he want[s][;] an overseeing
mentality. I assure you he does not have that right.” (Id.) On another occasion, Walker
complained to Peters’s boss about his conduct via email. (ECF No. 9-2 at 5.) These complaints,
though informal, qualify as opposing activity protected by Title VII. Littlejohn, 795 F.3d at 317.
Further, Walker adequately alleges a causal connection between these complaints and the
adverse employment actions he experienced. Whenever Walker would complain to Peters’s
supervisor, “[Peters] would pull all the [shop’s] personnel into the conference room explaining
what was going on so the entire shop would look down upon [Walker] . . . .” (Id. at 5.) On one
occasion, Peters was copied on a chain of emails between Walker and a higher-up regarding
Peters’s conduct. (Id.) Peters printed out the email chain, “tacked it on the [shop’s] dry erase[]
board,” drew “one foot large arrows” around it, and wrote: “PLEASE READ, RAY.” (Id.)

Throughout this time and afterwards, Walker was consistently relegated to less desirable projects
(Id. at 4), and he ultimately was denied a promotion for which he was qualified (FAC at 5).
Walker has a low bar to clear at the pleading stage of a Title VII complaint, and he has
met this minimal burden by making informal complaints about Peters’s allegedly racially
motivated behavior and continuing to experience less desirable work assignments from Peters
after these complaints became known to Peters. Second, because Walker is alleging that Peters
intentionally filed disciplinary charges against Walker to prevent his promotion, and the
plaintiff’s allegations must be assumed to be true at this stage, it is plausible that Peters’s actions
were in retaliation for the prior complaints Walker had filed.

Metro-North’s motion to dismiss Walker’s retaliation claim is thus denied.
C. Hostile Work Environment
Metro-North next moves to dismiss Walker’s Title VII claim of a hostile work
environment, arguing that Walker has failed to allege “severe or pervasive” harassment and, in
the alternative, that Walker failed to administratively exhaust this claim because he did not raise
it in his complaint with the New York State Division of Human Rights (“NYSDHR”).
To survive a motion to dismiss a claim for hostile work environment, a plaintiff must
show “(1) that the harassment was sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment, and (2) that a specific basis
exists for imputing the objectionable conduct to the employer.” Alfano v. Costello, 294 F.3d
365, 373 (2d Cir. 2002) (cleaned up). To show that harassment rises to the level of “severe or
pervasive,” a plaintiff “must show that the workplace was so severely permeated with
discriminatory intimidation, ridicule, and insult that the terms and conditions of her employment
were thereby altered.” Id. Further, “[a] plaintiff must also demonstrate that she was subjected to
the hostility because of her membership in a protected class.” Brennan v. Metro. Opera Ass’n,

Inc., 192 F.3d 310, 318 (2d Cir. 1999).
Walker describes an uncomfortable work environment at Metro-North. His boss openly
mocked him on one occasion for making complaints to higher-ups (Opp. at 5), once yelled and
cursed at Walker in front of his colleagues (id. at 4-5), and twice filed allegedly false disciplinary
charges against Walker to prevent a possible promotion (FAC at 5). These one-off actions alone
likely do not rise to the level of “severe or pervasive.” See Banks v. General Motors, LLC, 81
F.4th 242, 262 (2d Cir.) (“A plaintiff must show that . . . a single incident was extraordinarily
severe.” (internal quotation marks omitted)); Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015)
(“As a general rule, incidents must be more than episodic; they must be sufficiently continuous

and concerted in order to be deemed pervasive.” (internal quotation marks omitted)).
However, Walker’s allegations about Peters’s and Carr’s refusal to wear masks during
the height of a deadly pandemic plausibly constitute severe or pervasive harassment. The mask
refusal was not a one-time event; Walker states that he had to “consistently remind Ray Peters
and other[s] that they need to wear a mask.” (Opp. at 4.) And when Walker then attempted to
use the conference room to socially distance himself, Peters mandated “out of the blue” that no
one was allowed to use the conference room anymore. (Id.) While refusing to wear a mask in
2024, given the availability of vaccinations and herd immunity, would likely not rise to the level
of “severe or pervasive” harassment, such conduct in 2020, when a reasonable person could have
felt that unmasking in a confined workplace was a daily threat to one’s life, could plausibly rise
to this level.5
Further, Walker sufficiently connected this harassment to his race. He reported the mask
incidents to Metro-North’s Deputy Director of Diversity and EEO as an example of Peters’s
“negative bias against [Walker]” and because of Peters’s and others’ “Proud Boy mentality.”6

These phrases, read in connection with Walker’s allegations against Peters for harboring racial
bias against him in job assignments and sabotaging Walker’s promotion attempts, adequately
connect the refusal of Peters to wear a mask around Walker to his race.7
Finally, Metro-North’s alternative defense that Walker failed to administratively exhaust
this claim is incorrect. Though Walker did not check the box on his NYSDHR complaint that he
had been “harassed or intimidated” (Mem. at 12), he did allege other employment discrimination
claims that were sufficiently related to a hostile work environment such that the exhaustion
requirement is satisfied. See Shah v. New York State Dep’t of Civ. Serv., 168 F.3d 610, 614 (2d

5 As a court in this District noted in August 2020: “The Court may take judicial notice of
‘relevant matters of public record.’ See Giraldo v. Kessler, 694 F.3d 161, 16[4] (2d Cir. 2012).
According to the Centers for Disease Control and Prevention, COVID-19 is a highly infectious
and potentially deadly respiratory disease caused by a newly discovered coronavirus that spreads
easily from person-to-person. There is no pre-existing immunity against this new virus, which
has spread worldwide in an exceptionally short period of time, posing a serious public health
risk. On March 11, 2020, the World Health Organization declared COVID-19 a global
pandemic.” Geller v. Cuomo, 476 F. Supp. 3d 1, 4 (S.D.N.Y. 2020) (internal quotation marks
omitted).
6 See supra note 4 and accompanying text.
7 Though the Court is making some logical connections between Walker’s various
allegations, “[i]t is well established that the submissions of a pro se litigant must be construed
liberally and interpreted to raise the strongest arguments that they suggest” at this stage in
litigation. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (emphasis in
original).
Cir. 1999) (“[C]laims that were not asserted before the EEOC may be pursued in a subsequent
federal court action if they are ‘reasonably related’ to those that were filed with the agency.”)
Metro-North’s motion to dismiss Walker’s claim of a hostile work environment under
Title VII is therefore denied.
D. Punitive Damages

Metro-North next argues that, “[s]hould any of Walker’s claims remain, his request for
punitive damages should nevertheless be dismissed with prejudice.” (Mem. at 20.) To support
its argument, Metro-North cites a series of cases holding that “public benefit corporations” are
generally exempt from punitive damages because of their close connection to the government.
(See id. at 20-21.)
The Second Circuit has determined that “government entities are exempted from the
punitive damages provision of Title VII.” Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 256 (2d
Cir. 2005). And the New York Court of Appeals has held that “public benefit corporations,”
defined as entities largely funded by public sources and serving an “essential public function,”
are not generally subject to punitive damages for the same policy reasons government entities are

not. Clark–Fitzpatrick, Inc. v. Long Island R.R. Co., 70 N.Y.2d 382, 386-88 (N.Y. 1987). After
all, “punishment and deterrence . . . are hardly advanced when applied to a governmental unit
since it is the taxpayers who are ultimately penalized.” Hargett v. Metro. Transit Auth., 552 F.
Supp. 2d 393, 404 (S.D.N.Y. 2008) (Sharapata v. Town of Islip, 56 N.Y.2d 332, 338 (N.Y.
1982); see also Tanvir v. LaPorte, No. 93-CV-6923, 1997 WL 473084, at *4 (S.D.N.Y. June 13,
1997) (“Affording immunity from punitive damages awards to public benefit corporations under
Title VII . . . protects taxpayers from being punished for wrongful conduct they played no part
in, and safeguards tax money earmarked to be spent to advance the public good.”).
However, whether or not an entity qualifies as a “public benefit corporation” is a factual
determination that should be resolved at a later stage in litigation. Though Metro-North cites
cases identifying its affiliates as public benefit corporations, none of these cases determine that
Metro-North itself is a public benefit corporation. (See Mem. at 20-21.) And neither the Second
Circuit nor the New York Court of Appeals has held that Metro-North is a public benefit

corporation in the context of avoiding punitive damages under Title VII.
Further, “the question of whether to award punitive damages is an intensely factual [one],
and is ill suited for dismissal” at this stage in litigation. Henkels & McCoy Grp., Inc. v. Verizon
Sourcing, LLC, No. 21-CV-9576, 2022 WL 1185817, at *5 (S.D.N.Y. Apr. 21, 2022) (internal
quotation marks omitted).
Because the determination of Metro-North as a public benefit corporation and the
applicability of punitive damages are fact-intensive inquiries better resolved at a later stage in
litigation, Metro-North’s motion to dismiss is denied.
E. Stay Pending Arbitration
Finally, Metro-North moves to stay Walker’s remaining claims “pending the outcome of

his request for arbitration to the National Railroad Adjustment Board.” (Mem. at 21.) To
support its argument, Metro-North cites Second Circuit precedent: “The decision to stay the
balance of the pending arbitration is a matter largely within the district court’s discretion to
control its docket.” Genesco, Inc. v. T. Kakiuchi & Co., Ltd., 815 F.2d 840, 856 (2d. Cir 1987);
(Mem. at 15). The next sentence in Genesco is also relevant here: “Broad stay orders are
particularly appropriate if the arbitrable claims predominate the lawsuit and the nonarbitrable
claims are of questionable merit.” Genesco, 815 F.2d at 856.
The pending arbitration to which Metro-North refers concerns Walker’s disciplinary
suspensions for allegedly “engaging in conduct unbecoming [of] a Metro-North employee,
assuming the attitude of sleep/sleeping on duty[,] and violating Metro-North safety rules.”
(Mem. at 10-11.) Metro-North has not stated that Walker’s allegations of racial discrimination,
retaliation, or a hostile work environment would be adjudicated during this arbitration.
Because the “arbitrable claims” of Walker’s disciplinary infractions do not
“predominate” the current lawsuit, and Walker’s nonarbitrable Title VII claims are meritorious
enough to survive this motion to dismiss, the Court declines to use its discretion to issue a stay.
See Genesco, 815 F.2d at 856. However, given that the arbitration may impact future stages of
litigation, the parties are directed to update the Court on the arbitration’s outcome as soon as it is
finalized.
IV. Conclusion
For the foregoing reasons, Metro-North’s motion to dismiss the complaint is DENIED
and its motion to stay is DENIED. Metro-North shall file an answer within fourteen days after
the date of this opinion and order. See Fed. R. Civ. P. 12(a)(4)(A).
The Clerk of Court is directed to close the motion at Docket Number 6.
SO ORDERED.
Dated: September 23, 2024
New York, New York

United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10662723. Public record. Not legal advice.