GLICKMAN, Associate Judge:
Appellants are school officials who appeal their convictions of having violated the mandatory reporting statute, D.C. Code § 4-1321.02(a) (2001 Supp. 2010), by failing to report suspected child abuse after a student's parents complained to them that their daughter had been molested at school by other students. Appellants contend that the statute did not require them to report the incident because it did not involve child abuse or neglect on the part of a parent or other caretaker. We agree and, accordingly, we vacate appellants' convictions.
I.
Appellants, Isaac Hargrove and Juanita Handon, were the principal and vice-principal of Nation House School, a private school in the District of Columbia. On the evening of January 14, 2004, the parents of I.S., a preschool student at Nation House, complained to appellants that four of I.S.'s classmates had molested her in a school bathroom the previous day. By I.S.'s account, which her parents related to appellants, the other preschoolers — three boys and a girl — had put their fingers in her vagina. Earlier that day, I.S.'s parents had taken her to the hospital, and the Child and Family Services Agency (CFSA) and the Metropolitan Police Department (MPD) had been notified.
Appellants questioned the accused pre-school students and their parents about I.S.'s claims and came to believe that her allegations were not credible. Neither appellant made a report on I.S.'s alleged abuse to the CFSA or MPD.
At MPD, the case was assigned to Detective James Goldring. On February 2, the detective visited the school and met with appellants as part of his investigation. He inquired of appellant Hargrove whether the school would provide him with its internal incident report. Hargrove, who had begun preparing that report the night I.S.'s parents lodged their complaint but had not yet finished it, told Detective Goldring he "had no idea" it had to be submitted to MPD or CFSA. When the detective returned to the school two days later, Hargrove gave him his completed written report on the matter.
The District of Columbia subsequently charged appellants with having violated the mandatory reporting statute, D.C. Code § 4-1321.02(a). In pertinent part, that statute requires a school official to make an immediate report to either the MPD or the CFSA if he or she "knows or has reasonable cause to suspect that a child known to him or her in his or her professional or official capacity has been or is in immediate danger of being a mentally or physically abused or neglected child, as defined in [D.C.Code] § 16-2301(9)." The referenced statutory provision in Title 16 is part of the subchapter governing neglect and delinquency proceedings in Family Court. It defines the term "neglected child" to mean a child who has been (or is in danger of being) abused or neglected in any of several specified ways by his or her "parent, guardian, or custodian."
In 2004, and until it was amended in 2007, § 4-1321.02(a) provided for reports to be made to the Child Protective Services Division of the Department of Human Services or the MPD. Well before that amendment, however, the CFSA had assumed the role of implementing the mandatory reporting law. Thus, the parties agree that if appellants were obligated to make a report, it would have been to the CFSA or the MPD.
The persons required to report such abuse or neglect are enumerated in subsection (b) of D.C. Code § 4-1321.02.
At their bench trial, appellants moved for a judgment of acquittal. They argued that § 4-1321.02(a) did not require them to report the alleged abuse of I.S. by her classmates because it did not involve parental or other caretaker malfeasance and she therefore was not a "neglected child" within the meaning of § 16-2301(9). The trial judge disagreed with that interpetation of the mandatory reporting statute and found each appellant guilty of the misdemeanor offense.
At the time, willful violations of the mandatory reporting statute were punishable by a $100 fine and up to 30 days in jail. See D.C. Code § 4-1321.07 (2001). The maximum penalties subsequently were increased to a $300 fine and up to 90 days of imprisonment. See D.C. Law 16-306, § 203(c), 53 D.C.Reg. 8610 (effective Apr. 24, 2007).
II.
No abuse or neglect on the part of I.S.'s parents (her caretakers) was suspected or involved in this case. That much is undisputed. We are presented with a pure question of law, the interpretation of the mandatory reporting statute, subject to de novo review. At issue is the meaning of the language in D.C. Code § 4-1321.02(a) describing the child whose maltreatment must be reported: "a mentally or physically abused or neglected child, as defined in § 16-2301(9)." The parties disagree over how the two parts of this description relate to each other. Appellants argue that the phrase "as defined in § 16-2301(9)" modifies the preceding phrase, "a mentally or physically abused or neglected child," in its entirety, and hence that the statute requires a report only in cases of abuse or neglect involving caretaker malfeasance. The District argues that the reference to § 16-2301(9) defines only the term "neglected child" in the first phrase, and that a child may be "abused" within the meaning of that phrase even if no caretaker malfeasance is implicated. We conclude that appellants' reading of the statute is the correct one.
Veney v. United States, 936 A.2d 811, 822 (D.C. 2007).
We construe statutes in accordance with "[o]rdinary grammatical and syntactical usage," and if the "plain meaning" of statutory language "is clear and unambiguous and will not produce an absurd result, we will look no further." The phrase "a mentally or physically abused or neglected child" contains a single noun ("child") modified by adjectives, and thus constitutes a single noun-adjective compound. The following phrase, "as defined in § 16-2301(9)," set off from the first by a comma, functions as an adjectival modification of the "child" described by the first phrase — it equates that child to another noun-adjective compound, the "neglected child" defined by § 16-2301(9). Syntactically, therefore, the second phrase qualifies the first phrase in its entirety, not merely the term "neglected child." Appellants' reading of the reporting statute is the grammatically correct one.
Nat'l Med. Ass'n v. District of Columbia, 611 A.2d 53, 55 (D.C. 1992).
In re D.H., 666 A.2d 462, 469 (D.C. 1995).
That statutory reading comports with the rule of the last antecedent, pursuant to which qualifying words and phrases are assumed to refer solely to "the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence." Because the phrase "mentally or physically abused or neglected child" is a single noun-adjective compound, it contains only one antecedent to the adjectival phrase that follows it. Indeed, as appellants point out, if the words "neglected child, as defined in § 16-2301(9)" were removed from the reporting statute, the words "mentally or physically abused" would modify nothing. The meaning then would be impaired — the sentence would be non-sensical.
2A SUTHERLAND STATUTORY CONSTRUCTION § 47:33. at 487-89 (7th ed. 2007) (internal quotation marks and footnote omitted); see also Perkins v. District of Columbia Bd. of Zoning Adjustment, 813 A.2d 206, 211 (D.C. 2002) ("The rule is not inflexible, and it is not applied if the context of the language in question suggests a different meaning.").
Cf. Goldschmidl v. Paley Rolhman Goldstein Rosenberg Cooper, 935 A.2d 362, 372 (D.C. 2007) (holding that clause set off by commas does not modify the balance of a statute that would read "grammatically and sensibly" if the clause were deleted).
Because § 16-2301(9) defines only the term "neglected child," while the reporting statute speaks of an "abused or neglected child," it may appear incongruous at first blush that the two terms should be deemed equivalent. The appearance of incongruity is deceiving, however, because the definition of a "neglected child" in § 16-2301(9) specifically includes a child "who has been . . . abused by his or her parent, guardian, or custodian," and the word "abused" in that definition is itself defined, in paragraph (23) of § 16-2301, to encompass sexual abuse, the infliction of physical or mental injury, and other specified mistreatment. Thus, § 16-2301(9) aptly defines an "abused or neglected child" for purposes of the reporting statute — even though the definition is not as broad as it could have been because it excludes abuse by persons other than care-takers.
D.C. Code § 16-2301 (9)(A)(i). The term "neglected child" also includes a child whose caretaker "has failed make reasonable efforts to prevent the infliction of abuse upon the child," id., or "who is in imminent danger of being abused and another child living in the same household or under the care of the same parent, guardian, or custodian has been abused." Id. § 16-2301(9)(A)(v).
As the "several words ['a mentally or physically abused or neglected child'] are followed by a [phrase] which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the [phrase] be read as applicable to all." This conclusion is buttressed by the Council's repeated use of the term "neglected child" to include an "abused child" in other, closely-related provisions of the mandatory reporting laws. Thus, D.C. Code § 4-1321.01 (2001) declares that the "purpose" of the law is to "require a report of a suspected neglected child" in order to protect the child and to "prevent further abuse or neglect"; and § 4-1321.03(a), (b) (2001) states that the required report of "a known or suspected neglected child" must describe "[t]he nature and extent of the abuse or neglect of the child." The drafters employed the terms "neglect" and "abuse or neglect" and their variants inter-changeably.
Perkins, 813 A.2d at 213 (quoting Porto Rico Ry., Light Power Co. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 64 L.Ed. 944 (1920)).
"[A] statute should be read and construed as a whole within the context of the entire legislative scheme." Howard v. Riggs Nat'l Bank, 432 A.2d 701, 709 (D.C. 1981).
Similarly, the Council recognized that abuse is a type of neglect when it directed police to handle "a report of a neglected child other than an abused child" differently from "a report of an abused child," D.C. Code § 4-1301.05(a), (b) (2001), and when it required the CFSA to determine whether a child "alleged to be a neglected, but not an abused, child" should be removed from the home, id. § 4-1301.07(a)(2001).
The omission of a separate definition of the term "abused child" in § 4-1321.02(a) would be difficult to explain if the Council did not mean to capture its meaning by referring to § 16-2301(9). What possible reason would have led the Council to define only the term "neglected child" and not the companion term "abused child" as well? The District's answer to that question — that "neglected" is a term of art calling for definition while "abused" is not — is unpersuasive. Elsewhere — for instance, in D.C. Code § 16-2301 — the Council has found it useful to define each term separately.
That the Council chose neither to define "abused child" in the mandatory reporting statute other than by reference to § 16-2301(9), nor to require reporting of non-caretaker abuse in § 4-1321.02(a), is confirmed by recent legislative history. In 2002 the Council considered expanding the definition of child abuse in paragraph (23) of § 16-2301 to cover abuse perpetrated by non-caretakers; prior to that time, the paragraph defined abuse the way it did neglect, as a type of caretaker malfeasance. In a submission to the Committee on the Judiciary, the United States Attorney's Office supported the expansion and recommended that the Council incorporate the proposed new definition of abuse in the mandatory reporting statute. Noting that existing law "does not appear to mandate reporting of all child abuse, regardless of the relationship between the child and the perpetrator," the Office recommended that the reporting statute be amended "to read `has been or is in immediate danger of being a mentally or physically abused or neglected child, as defined in § 16-2301(9) or § 16-2301(23).'" The committee report on the final version of the bill took note of the request "that the statute be changed to require mandatory reporting of child abuse by all persons." However, while the Council proceeded to amend § 16-2301(23) to cover non-caretaker abuse, it did not make the corresponding change in § 4-1321.02(a). That the legislature did not adopt the suggested modification of § 4-1321.02(a) to correlate it to the expanded § 16-2301(23) "militates against [the District's] interpretation of the provision."
Improved Child Abuse Investigations Amendments Act of 2001: Hearing on Bill No. 14-372 before the Committee on the Judiciary, Council of the District of Columbia, Statement of United States Attorney's Office at 7-8 (Feb. 4, 2002).
Id. (emphasis added).
Committee on Human Services, Council of the District of Columbia, Report on Bill 14-372, "Improved Child Abuse Investigations Amendment Act of 2001," at 15 (June 11, 2002).
See D.C. Law 14-206, 49 D.C.Reg. 7815 (effective Oct. 19, 2002). Cf. D.C. Code § 4-1345.01(1)(A) (defining an "atrisk child or youth" for certain funding purposes to include one subjected to "[a]buse or neglect, as described in § 16-2301(9) and (23)").
Nat'l Med. Ass'n, Inc. v. District of Columbia, 611 A.2d 53, 55 n. 1 (D.C. 1992).
A few years later, the Council considered and eventually adopted a more modest expansion of the reporting requirement in § 4-1321.02. As part of a proposed "Omnibus Public Safety Act of 2005," the Mayor recommended that the statute be. amended to require the reporting of certain crimes against children committed by persons other than their caretakers. In written testimony submitted to the Judiciary Committee, the Attorney General explained the purpose of the proposed amendment as follows:
The Mayor has also proposed the Mandatory Reporting of Child Victimization Act of 2005. This new law is designed to fill a gap in the existing reporting requirements pertaining to child victimization. Currently, a mandatory reporter must only report when a child has been neglected or abused by a caretaker, parent or guardian.[
] There is no existing requirement that a mandatory reporter notify authorities when a child has been the victim of a crime by someone who is not a caretaker. . . .
The Mandatory Reporting of Child Victimization Act of 2005 is designed to expand the current law by including the requirement that specific mandated reporters be required to report certain crimes or injuries beyond the narrow scope of those which constitute child abuse or neglect. . . .
This relatively narrow expansion of the District's existing mandated reporter law is an important step in providing additional protection for our children who have been seriously victimized, but are not necessarily abused or neglected. The Bill is carefully tailored to apply only to those who are routinely entrusted with the care of children and it is limited in the types of crimes or injuries that must be reported in order to ensure that the most egregious crimes against children do not go unreported."[
]
The Council eventually adopted the Mayor's proposal, not by expanding the definition of an "abused or neglected child" in subsection (a) of § 4-1321.02, but by adding subsection (e).
That subsection provides that a mandatory reporter
who knows or has reasonable cause to suspect that a child known to him or her in his or her professional or official capacity has been, or is in immediate danger of being, the victim of "sexual abuse" or "attempted sexual abuse" prohibited by Chapter 30 of Title 22; or that the child was assisted, supported, caused, encouraged, commanded, enabled, induced, facilitated, or permitted to become a prostitute, as that term is defined in § 22-2701.01(3); or that the child has an injury caused by a bullet; or that the child has an injury caused by a knife or other sharp object which has been caused by other than accidental means, shall immediately report or have a report made of such knowledge, information, or suspicion to the Metropolitan Police Department or the Child and Family Services Agency.
Subsection (e) would be redundant if subsection (a) already required mandatory reporters to report child abuse committed by non-caretakers. The District suggests that the Council simply "may have been acting out of an abundance of caution to clarify that at minimum the particular forms of abuse in new [subsection] (e) would trigger the statute." That suggested explanation is belied by the legislative history of the amendment, which shows that subsection (e) was meant to enlarge the reporting requirement only to the extent stated therein.
Brief for the District of Columbia at 22 n. 8.
In construing the pre-existing subsection (a) of § 4-1321.02, we appreciate that, ordinarily, "the views of a subsequent [legislature] form a hazardous basis for inferring the intent of an earlier one." But this is not a situation in which a party is invoking "subsequent legislative history [to] override a reasonable interpretation of a statute that can be gleaned from its language and legislative history prior to its enactment." The District has not advanced, nor have we found, any legislative history casting doubt on what we take to be the Council's consistent view from 2002 to 2007 that § 4-1321.02(a) imposes no reporting obligation with respect to non-caretaker malfeasance. That view comported with the plain meaning of the statute, and it reflected the expressed understanding of the Attorney General, the United States Attorney's Office, and the CFSA. So far as we are aware, no one disputed it. In these circumstances, we believe the Council's view of the matter is entitled to considerable weight. At a minimum, it "tells us how the law was generally interpreted at that time, even if we cannot draw from that fact [alone] that the interpretation is correct."
United States v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 4 L.Ed.2d 334 (1960).
Doe v. Chao, 540 U.S. 614, 626-27, 124 S.Ct. 1204, 157 L.Ed.2d 1122 (2004) (internal quotation marks omitted).
Washington Gas Light Co. v. Pub. Serv. Comm'n of the District of Columbia, 982 A.2d 691, 721 n. 134 (D.C. 2009) (emphasis in the original).
We conclude that the mandatory reporting statute means just what it says. Section 4-1321.02(a) imposes no reporting requirement in the absence of reasonable cause to suspect caretaker malfeasance in connection with the abuse or neglect of a child. Because appellants had no reason to suspect such malfeasance on the part of I.S.'s parents or caretakers in the present case, we vacate their convictions.
So ordered.
her October 2007 termination was not properly exhausted. "Jurisdiction exists over Title VII claims only if they have been included in an EEOC charge, or are based on conduct subsequent to the EEOC charge which is reasonably related to that alleged in the EEOC charge."
Alfano v. Costello, 294 F.3d 365, 381 (2d Cir. 2002) (citation and quotation marks omitted);
Terry v. Ashcroft, 336 F.3d 128, 150-51 (2d Cir. 2003). Here, the EEOC complaint was filed on May 7, 2007. (McCaffrey Decl. Ex. RR.) In August 2007, disciplinary charges were initiated. On September 25, 2007, plaintiff sought a Right to Sue letter from the EEOC. In October 2007, plaintiff was terminated. The EEOC issued plaintiff a Right to Sue letter on November 30, 2007. Because the October 2007 termination was subsequent to the filing of the EEOC complaint, it was not included in the EEOC complaint and therefore must be reasonably related to the claims therein in order to be properly exhausted.
"Subsequent conduct is reasonably related to conduct in an EEOC charge if: [1] the claim would fall within the reasonably expected scope of an EEOC investigation of the charges of discrimination; [2] it alleges retaliation for filing the EEOC charge; or [3] the plaintiff `alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge.'" Alfano, 294 F.3d at 381 (quoting Butts v. City of N.Y. Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1402-03 (2d Cir. 1993)).
Here, plaintiff contends that the October 2007 termination was a further incident of discrimination carried out in precisely the same manner as alleged in the EEOC complaint. (Pl. Br. 14-15.) The EEOC complaint alleges instances of unfounded discipline. ( See McCaffrey Decl. Ex. RR.) Specifically, it alleges that plaintiff was disciplined for misrouting trains and was terminated because of unjustly implemented discipline that was not consistent with the discipline imposed on other employees. ( Id.) Plaintiff's claim regarding her October 2007 termination alleges the same "method of discrimination." Boateng v. Apple Health Care, Inc., 156 F. Supp. 2d 247, 252 (D. Conn. 2001); see also Almendral v. New York State Office of Mental Health, 743 F.2d 963 (2d Cir. 1984) ("[D]efendants' alleged subsequent acts are essentially the same as the earlier allegedly wrongful conduct contained in the EEOC complaint: namely, alleged manipulation of the civil service rules for discriminatory reasons in order to appoint someone other than [plaintiff]."); Jimenez v. City of New York, 605 F. Supp. 2d 485, 500 (S.D.N.Y. 2009).
Defendant argues, without citing to any authority, that the errors plaintiff committed that led to her October 2007 termination occurred at a different location and were referred to the trial office by a different supervisor. However, these are insignificant distinctions. Boateng, 156 F. Supp. 2d at 252 (differences such as the individuals involved are insignificant distinctions). Therefore, the claim falls within the third theory and is properly exhausted.
C. Title VII and Section 1981 Gender and Race Discrimination
The remaining gender and race discrimination claim centers around plaintiff's allegation that her October 2007 dismissal resulted from discrimination. Under Title VII, it is "an unlawful employment practice for an . . . employer 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." 42 U.S.C. § 2000e-2(a)(1). To prevail against a motion for summary judgment, a discrimination plaintiff must satisfy the three-part burden-shifting test laid out by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). "In a nutshell, a plaintiff first bears the `minimal' burden of setting out a prima facie discrimination case, and is then aided by a presumption of discrimination unless the defendant proffers a `legitimate, nondiscriminatory reason' for the adverse employment action, in which event, the presumption evaporates and the plaintiff must prove that the employer's proffered reason was a pretext for discrimination." McPherson v. New York City Dept. of Educ., 457 F.3d 211, 215 (2d Cir. 2006) (citations omitted). Employment discrimination claims brought under § 1981 are subject to the same analysis as claims brought under Title VII. See Choudhury v. Polytechnic Inst. of N.Y., 735 F.2d 38, 44 (2d Cir. 1984). Accordingly, these claims will be addressed together.
Defendant argues in its motion papers that plaintiff's February 2007 dismissal did not result from discrimination, apparently believing that this was one of plaintiff's claims. Plaintiff does not address this argument, and it appears that she is not asserting that claim. In particular she does not address defendant's argument that she did not suffer any adverse employment action, as the charges underlying the termination were withdrawn and plaintiff was reinstated with back pay. Therefore, if plaintiff is indeed asserting this claim, the court finds that, even though under certain circumstances a plaintiff who was terminated but nevertheless reinstated can demonstrate an adverse employment action, plaintiff here has conceded that she cannot establish a prima facie case because there was no adverse employment action. The claim is therefore dismissed. See, e.g., Almonte v. Coca-Cola Bottling Co., 959 F. Supp. 569, 572-73 (D. Conn. 1997) (no adverse action where reinstated with back pay); see also Washington v. County of Rockland, 211 F. Supp. 2d 507, 514 (S.D.N.Y. 2002).
1. Plaintiff's Claim With Respect to her October 2007 Termination is Dismissed
Plaintiff argues that her termination in October 2007 resulted from discrimination. Defendant contends that plaintiff has not established a prima facie case, and even if she has, she fails to demonstrate that defendant's legitimate, non-discriminatory reasons for plaintiff's termination are a pretext for discrimination. The court assumes for the purposes of this motion that plaintiff has established a prima facie case of discrimination. "`Despite the elaborate process set up in McDonnell Douglas, Second Circuit case law makes clear that a court may simply assume that a plaintiff has established a prima facie case and skip to the final step in the McDonnell Douglas analysis, as long as the employer has articulated a legitimate, nondiscriminatory reason for the adverse employment action.'" Dorcely v. Wyandanch Union Free School Dist., 665 F. Supp. 2d 178 (E.D.N.Y. 2009) (citing additional cases). Defendant has demonstrated legitimate, nondiscriminatory reasons for plaintiff's termination, specifically her long history of letters of caution, reprimands and other discipline for violations of the operating rules, abuse of sick leave, and other improper actions that culminated in a violation of her Last Chance Agreement. See, e.g., Eldaghar v. City of New York Dept. of Citywide Admin. Servs., 2008 WL 4866042, at *10-11 (S.D.N.Y. Nov. 7, 2008) ("Plaintiff's job performance is a legitimate, nondiscriminatory reason for its decision to terminate Plaintiff."); Baldwin v. N. Shore Univ. Hosp., 470 F. Supp. 2d 225, 230-31 (E.D.N.Y. 2007); Ford v. Consol. Edison Co. of New York, Inc., 2006 WL 538116, at *11 (S.D.N.Y. Mar. 3, 2006). Therefore, the Court proceeds directly to the ultimate question of whether plaintiff has presented sufficient evidence from which a reasonable jury could find race discrimination.
"The ultimate question is whether the employer intentionally discriminated. . . . [I]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." James v. New York Racing Assoc., 233 F.3d 149, 156 (2d. Cir. 2000) (internal quotation marks and citation omitted). To defeat defendant's motion for summary judgment, it is therefore plaintiff's burden to demonstrate that there is a material issue of fact as to whether (1) defendant's asserted reason for discharge is false or unworthy of belief and (2) "more likely than not," plaintiff's race and gender were the real reasons for the discharge. See Faldetta v. Lockheed Martin Corp., 2000 WL 1682759, at *8 (S.D.N.Y. Nov. 9, 2000). "Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors," including: (1) "the strength of the plaintiff's prima facie case"; (2) "the probative value of the proof that the employer's explanation is false"; and (3) "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." Reeves, 530 U.S. at 148-49.
Plaintiff has not provided sufficient evidence to create an issue of fact. To establish pretext, plaintiff points to other employees that she contends are similarly situated but were not disciplined in the same manner. A plaintiff may show pretext by demonstrating that similarly situated employees of a different race were treated more favorably. Hargett v. Nat'l Westminster Bank, USA, 78 F.3d 836, 839 (2d Cir. 1996). "[The] plaintiff must compare herself to employees who are similarly situated in all material respects." Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999) (internal quotation omitted). "What constitutes `all material respects' . . . varies somewhat from case to case and . . . must be judged based 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). Ultimately, "the standard for comparing conduct requires a reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases, rather than a showing that both cases are identical." Id.
Plaintiff has provided several comparators, none of whom are sufficient to demonstrate pretext. The comparators do not have disciplinary histories nearly as long or as severe as plaintiff's, which is demonstrated by the fact that most have not had to sign a Last Chance Agreement. See, e.g., Paladino v. DHL Express (USA), Inc., 2010 WL 1257786, at *11 (E.D.N.Y. Mar. 26, 2010) ("[I]t cannot be said that these employees, who were not on a last chance agreement, were similarly situated to Plaintiff."); McKinney v. Bennet, 2009 WL 2981922, at *7 (S.D.N.Y. Sept. 16, 2009) (plaintiff was not similarly situated where the comparators did not have a comparable disciplinary history); Jeunes v. Potter, 2009 WL 2883060, 9 (D. Conn. Sept. 3, 2009) (plaintiff "had several disciplinary actions against him and termination of employment was the next step in his progressive discipline"); Guerrero v. Conn. Dept. of Children and Families, 315 F. Supp. 2d 202, 210 (D. Conn. 2004) (holding that plaintiff "is dissimilar from the comparator based on the fact that his disciplinary record is far worse than that of the comparator").
As described above, plaintiff cannot now complain that the imposition of the Last Chance Agreement was discriminatory because that claim is time barred.
Apparently acknowledging that the comparators were not subject to a Last Chance Agreement, plaintiff cites to these individuals as examples of isolated instances where an employee received a different discipline than she did for a similar violation. (Pl. Br. 8-13.) However, isolated incidents are insufficient to show that plaintiff's termination was on the basis of discrimination, especially considering that plaintiff's disciplinary history is far worse than that of the comparators. See, e.g., D'Cunha v. New York Hosp. Med. Ctr. of Queens, 2006 WL 544470, at *7 (E.D.N.Y. Mar. 6, 2006) (differing treatment was justified where the comparator had no prior disciplinary history); Padilla v. Harris, 285 F. Supp. 2d 263, 270 (D. Conn. 2003) ("Prior disciplinary problems may be sufficient to justify differential treatment of otherwise similarly situated employees."); see also O'Neal v. State Univ. of New York, 2006 WL 3246935, at *11 (E.D.N.Y. Nov. 8, 2006) (minor instances of differing treatment are insufficient and the focus should be on "employees that have similar qualifications, display similar disciplinary records or committed similar insubordinate acts"). Therefore, the comparators who do not have a long history of disciplinary violations and who have not been subjected to a Last Chance Agreement are not sufficiently similar to plaintiff. Moreover, these comparators' discipline progressed in a similar manner as plaintiff's and thus cannot be used to demonstrate disparate treatment. See, e.g., Martin-Glave v. Aventis Pharm., 2007 WL 81913, at *11 (D. Conn. Jan. 8, 2007) (no disparate treatment where a similarly situated employee was treated in the same manner as plaintiff); Satterfield v. United Parcel Serv., Inc., 2003 WL 22251314, at *10 n. 11 (S.D.N.Y. Sept. 30, 2003).
Only one of the comparators — V.L., a Caucasian male who plaintiff argues was "most similarly situated" to her — had signed a Last Chance Agreement. In February 2007, V.L. received a letter of caution for routing trains out of order. His blood was tested shortly after the incident, and he was charged with a violation of the corporate alcohol and substance abuse policy. He signed a trial waiver and Last Chance Agreement, pursuant to which he was suspended for nine months. In March 2008, he received a letter of caution for violating Rule 812 for incorrectly routing a train. Plaintiff argues that V.L. is similarly situated to plaintiff and committed a violation of Rule 812, which was one of the rules plaintiff broke when she was terminated, and yet he was not terminated.
Plaintiff also alleges that V.L. misrouted another train after he signed the Last Chance Agreement. Although Joseph Navarro testified that V.L. committed a misroute while working as a PSCC console operator, he did not remember when it occurred. Plaintiff alleges that it "necessarily would have been after the first one," yet she provides neither evidence nor any explanation for why that would be the case. (Pl. Br. 17.) Plaintiff's only basis is that Mr. Navarro testified that V.L. was transferred to PSCC after his Last Chance Agreement. (Pl. Br. 12 (citing McIntyre Decl. Ex. 15, at 152).) However, the deposition testimony does not support that contention. Defendant disputes this charge and argues that the misroute occurred before V.L. was subjected to the Last Chance Agreement. However, defendant cites to "McC. Dec., II, Ex. B" to support this contention, and there is no exhibit B attached to the second McCaffrey Declaration. Nevertheless, drawing all inferences in favor of plaintiff, there is no basis to show that this misroute occurred after the Last Chance Agreement.
Plaintiff cites Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000) to support her contention that V.L.'s treatment demonstrates pretext. In Graham, plaintiff, an African-American male, was found guilty of drug use, and as a result, was given a last chance agreement. Id. at 37. Two months later, he tested positive for drugs and was terminated. Id. Plaintiff submitted evidence that two white employees also tested positive for drugs or alcohol and received multiple last chance waivers while plaintiff was fired after being given only one. Id. at 41. The court held that on the face of the waivers, dismissal followed automatically from a violation of the last chance agreement and plaintiff's evidence therefore established a question of fact regarding whether the employees were similarly situated. Id. at 43.
Although the facts of Graham share some similarities with the facts here, the case is different in several material respects. First, V.L.'s and plaintiff's Last Chance Agreements are not the same. V.L.'s agreement was implemented after only one incident involving a violation of the Corporate Alcohol and Substance Abuse Policy, and focused on discipline based on this drug use. For example, it stated that he had to submit to an Employee Assistance program, he "may be subject to dismissal" if he is found guilty of testing positive for the presence of alcohol and/or drugs, he will be subject to follow-up testing, and he may be dismissed if found guilty of any other disciplinary offense. (McIntyre Decl. Ex. 9.) However, plaintiff received her agreement after a long history of violations, and the agreement was implemented after she violated several operating rules for failing to properly relay appropriate notifications, using a cell phone, and leaving work without permission. Her agreement focused on these offenses and stated only that if she is found guilty of any similar offenses, she "may be subject to dismissal." (McIntyre Decl. Ex. 1.) In Graham, in contrast, the court noted that the comparators had been given last chance waivers listing the same conditions mandating dismissal, and the language stipulating dismissal for a violation was categorical. Graham, 230 F.3d at 43.
Second, V.L. and plaintiff engaged in different conduct. Plaintiff misrouted a train in violation of Rule 812, one of the rules that formed the basis of her last chance agreement. She also improperly removed a blocking device in violation of another operating rule, and plaintiff does not dispute that this violation is more serious than other violations. ( See supra Part I.B.) In comparison, V.L. only misrouted a train in violation of Rule 812. Therefore V.L. and plaintiff did not engage in conduct of comparable seriousness. See, e.g., Jenkins v. St. Luke's-Roosevelt Hosp. Center, 2009 WL 3682458, at *8 (S.D.N.Y. Oct. 29, 2009) (comparator not similarly situated where he did not engage in "all of the same misconduct"); Tomasino v. Mount Sinai Med. Ctr. Hosp., 2003 WL 1193726, at *8 (S.D.N.Y. Mar. 13, 2003) (comparators were not similarly-situated in all material respects where none committed the most serious of the infractions for which defendant was terminated).
Third, even if plaintiff and V.L. were similarly situated, they were treated similarly. After plaintiff signed the Last Chance Agreement, her supervisors gave her a verbal warning for improperly routing two trains. They also gave her a verbal warning for a separate incident where plaintiff improperly routed two trains. It was only after plaintiff committed yet another misroute and failed to properly remove a blocking device, in violation of two operating rules, that she was terminated. The fact that defendant did not terminate V.L. after he misrouted a train in violation of only one operating rule, and gave him only a letter of caution, demonstrates similar treatment. See, e.g., Martin-Glave, 2007 WL 81913, at *11; Satterfield, 2003 WL 22251314, at *10 n. 11. Therefore, no reasonable jury could conclude that plaintiff was treated differently than V.L.
In sum, plaintiff fails to demonstrate that defendant's asserted reason for discharge is false or unworthy of belief and that it is more likely than not that plaintiff's race and gender were the real reasons for her discharge.
2. The Arbitration Decision is Further Evidence of Lack of an Inference of Discrimination
Plaintiff's contention that her termination was the result of discrimination is further undermined by the fact that defendant's decision to terminate plaintiff was also the subject of an arbitration proceeding where the arbitrator held that plaintiff's termination was justified. Although the arbitration decision is not inherently conclusive, it is relevant evidence of a lack of discriminatory intent. "Where an employee's ultimate termination depends upon, and is allowed by, a decision of an independent and unbiased arbitrator based on substantial evidence after a fair hearing, the arbitration decision has probative weight regarding the requisite causal link between an employee's termination and the employer's illegal motive." Collins v. New York City Transit Auth., 305 F.3d 113, 115 (2d Cir. 2002). "[A] negative arbitration decision rendered under a CBA does not preclude a Title VII action by a discharged employee. However, a decision by an independent tribunal that is not itself subject to a claim of bias will attenuate a plaintiff's proof of the requisite causal link." Id. at 119 (citation omitted). Therefore, to survive a motion for summary judgment, a Title VII plaintiff alleging discriminatory termination that is upheld after arbitration must present "strong evidence that the [arbitrator's] decision was wrong as a matter of fact — e.g. new evidence not before the tribunal — or that the impartiality of the proceeding was somehow compromised." Id.
Here, plaintiff's termination was upheld unanimously by the PLB. The PLB noted that plaintiff had admitted to violating the Operational Rules, and that dismissal was appropriate. Moreover, the PLB noted that plaintiff failed to present any proof that she was coerced into signing the Last Chance Agreement, and that "she was extremely fortunate that [her union] was able to convince [the defendant] to offer her a Last Chance Agreement in view of her poor work history." (McCaffrey Decl. Ex. QQ.) At the proceedings before the PLB, plaintiff was represented by union officials, and she was able to submit evidence and present arguments in her defense.
Notably, plaintiff chose not to raise or submit any evidence in support of her contention that she was subjected to discrimination.
Plaintiff admits that the arbitration was not biased. (Pl. Br. at 18.) Plaintiff contends, however, that the arbitration decision is wrong as a matter of fact because it did not consider any evidence of discrimination. ( Id.) Plaintiff's argument has been rejected by courts in this Circuit. See Gallimore-Wright v. Long Island R.R., 354 F. Supp. 2d 478, 491-92 (S.D.N.Y. 2005); Simpson v. New York State Dept. of Civil Serv., 2005 WL 545349, at *16 (N.D.N.Y. Mar. 1, 2005) ("Under Collins and its progeny, failure to address the discrimination issue in an arbitration does not diminish the impact of that arbitration on a subsequent discrimination action." (citations omitted)), aff'd, 166 Fed. Appx. 499 (2d Cir. 2006); Robinson v. Getinge/Castle, Inc., 2005 WL 272964, at *8 (W.D.N.Y. Feb. 2, 2005) (citing additional cases and stating that courts within this Circuit have repeatedly rejected the argument that an arbitrator's decision should not be credited simply because the issues of discrimination and retaliation were not before the arbitrator); Davis v. O-At-Ka Milk Products Coop., Inc., 2004 WL 2980757, at *4 (W.D.N.Y. Dec. 22, 2004); Roemer v. Board of Ed., 290 F. Supp. 2d 329, 334 (E.D.N.Y. 1999), aff'd, 150 Fed. Appx. 38 (2d Cir. 2005).
Indeed, the court in Gallimore-Wright stated:
There is no suggestion in
Collins that the plaintiff had presented his evidence of discriminatory or retaliatory intent to the arbitrator. Certainly the Circuit did not rely on any findings by the arbitrator with respect to any such claims. And this makes good sense in light of what the Circuit did say. Its point was that the arbitration decision finding that the plaintiff . . . was properly terminated was strong evidence of a lack of retaliatory or discriminatory intent which, in the absence of any meaningful proof to the contrary, prevented the plaintiff from making out a prima facie case.
354 F. Supp. 2d at 492-93.
Therefore, the fact that the arbitrator did not hear plaintiff's discrimination claims does not discount the arbitrator's findings. Although plaintiff's conduct justifying termination was arguably not as egregious as that in Collins — where the plaintiff had committed an assault — that fact does not make the arbitrator's decision here wholly immaterial, especially considering that plaintiff has admitted to all of the suspensions and disciplinary actions that the arbitrator objectively found justified plaintiff's termination. See Edwards v. Metro-North Commuter R. Co., 463 F. Supp. 2d 279, 285 (D. Conn. 2006) ("Plaintiff also seeks to distinguish Collins factually on the basis that Collins involved a plaintiff who had assaulted his supervisor, but the import of Collins is not premised on the nature of the employee's conduct, but rather on the fact of a decision by a neutral arbiter supported by substantial evidence that is adverse to the plaintiff."). Additionally, the reasons for termination in some of the cases citing Collins are similar to the bases here and involve a failure to perform adequately, rather than a single egregious incident. See, e.g., Simpson, 2005 WL 545349, at *3-7 (plaintiff terminated for accessing confidential information after several disciplinary actions); Roemer, 290 F. Supp. 2d at 332-33 (plaintiff terminated for various failings as a teacher). Notably, plaintiff's performance complaints concerned actions that potentially jeopardized the safety of passengers on the trains she improperly routed.
The only cases cited by plaintiff to support her contention that the arbitration decision was wrong as a matter of law are Petrovis v. New York City Transit Auth., 2003 WL 22349676, at *4 (S.D.N.Y Oct. 15, 2003) and Morel v. Am. Building Maint. Co., 124 Fed. Appx. 671, 672 (2d Cir. 2005). First, to the extent that Petrovis, which is merely persuasive and not controlling, holds that an arbitrator's decision is not given weight when the arbitrator is not presented evidence of discrimination, the decision is contrary to many other decisions in the Second Circuit. Moreover, unlike Petrovis, where the plaintiff had been denied a promotion, the facts of this case are more similar to those in cases like Collins, Simpson, Gallimore-Wright, and Robinson, in which the employee had been terminated, the arbitrator reviewed the evidence supporting the termination, and the court accorded the arbitration decision "great weight." See Collins, 305 F.3d at 115; Simpson, 2005 WL 545349, at *16; Gallimore-Wright, 354 F. Supp. 2d at 491-92; Robinson, 2005 WL 272964, at *8. Additionally, contrary to Morel, where the court held that an arbitration decision cannot be given preclusive effect, as discussed above, the evidence here has been weighed to determine whether plaintiff has raised an issue of fact.
Accordingly, considering all of the evidence in the record and granting plaintiff all of the inferences to which she is entitled, the court finds that plaintiff has failed to meet her burden in adducing sufficient evidence to support a jury finding that plaintiff was terminated for discriminatory reasons. Defendant's motion for summary judgment therefore is granted as to plaintiff's race and gender discrimination claims.
D. Title VII and Section 1981 Retaliation
Plaintiff also alleges retaliation pursuant to Title VII and Section 1981 for making an internal complaint of discrimination in December 2006 and for filing the EEOC complaint on May 9, 2007. Title VII prohibits an employer from discriminating against an employee "because he has opposed any practice made an unlawful employment practice by this title, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this title." 42 U.S.C. § 2000e-3(a).
Retaliation claims under Title VII are analyzed under the McDonnell Douglas burdenshifting test described above. See Coffey v. Dobbs Intern. Servs., Inc., 170 F.3d 323, 326 (2d Cir. 1999). To establish a prima facie case of retaliation, plaintiff must show "[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action." Richardson v. Comm'n on Human Rights Opportunities, 532 F.3d 114, 123 (2d Cir. 2008) (citation and quotation marks omitted). "The elements required to make out a claim of retaliatory discharge under 42 U.S.C. § 1981 are the same as those required to make out such a claim under Title VII." Taitt v. Chem. Bank, 849 F.2d 775, 777 (2d Cir. 1988). See also Berry v. Empire Homes Servs. LLC, 2010 WL 1037948, at *13 (E.D.N.Y. Mar. 18, 2010).
1. Plaintiff Has Failed to Establish a Prima Facie Case With Regard to the December 2006 Internal Complaint
Plaintiff argues that, in January 2007, defendant disciplined her in retaliation for making an internal complaint in December 2006 regarding comments made to her by Rob Free. As described above, on December 27, 2006, Rob Free broadcasted requests over a line audible to console operators. When plaintiff did not implement the requests, Mr. Free stated "You guys are going to regret it when I come up there, I'll say that much, man. You guys are in for a rude awakening." (Def. 56.1 Stmt. ¶ 71; Pl. 56.1 Stmt. ¶ 71.) Plaintiff wrote a letter of complaint, dated December 28, 2006, with regard to Mr. Free's comments, alleging that the comments were directed at her and were inappropriate and that they created a hostile work environment. Plaintiff's letter did not state that she felt that she was being discriminated against on the basis of gender or race; rather, it stated merely that Mr. Free "lack[ed] professionalism" and caused humiliation. (McCaffrey Ex. AA.) On January 3, 2007 and January 10, 2007, plaintiff received trial notices for operational errors. Plaintiff argues that the January 3 and January 10, 2007 discipline was the result of her December 28, 2006 complaint.
Defendant contends that plaintiff has failed to show a protected activity or an adverse employment action. Specifically, defendant argues that the December 28, 2006 complaint contains no allegations of racial or gender discrimination and therefore does not constitute a protected activity of which the defendant was aware. Plaintiff responds that it was clear that the complaint was about race and gender because "plaintiff was an African-American woman complaint about behavior of a Caucasian man." (Pl. Br. 23.) However, "implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by Title VII." Galdieri-Ambrosini v. Nat'l Realty Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998). The mere fact that the person or people "making the complaints [were] African American will not convert an ordinary complaint into a complaint of racial discrimination sufficient to put the employer on notice of such discrimination." Aspilaire v. Wyeth Pharm., Inc., 612 F. Supp. 2d 289, 310 (S.D.N.Y. 2009). Significantly, there is no reference to race or to female gender in the statements by Mr. Free that plaintiff complains of. Nor were his statements directed to any one particular person in any discernable way. Because the statements displayed no obvious reference to race or gender and plaintiff's letter addressed harassment generally, but did not mention gender or race discrimination or harassment, there is no reason to impute to defendant any consciousness of an unstated race or gender premise underlying the harassing conduct described. See Inganamorte v. Cablevision Sys. Corp., 2006 WL 2711604, at *16 (E.D.N.Y. Sept. 21, 2006) (defendant could not have been aware of plaintiff's complaint of gender discrimination because the complaint failed to state or imply that "gender has anything to do with her objections"); Bengard v. United Parcel Serv., 2001 WL 1328551, at *9 (E.D.N.Y. Aug. 22, 2001) (where a letter that mentioned being "humiliated, harassed, threatened and manipulated by someone with authority" but failed to reference any religious basis for the harassment, there was no reason to impute to defendant a "consciousness of an unstated religious premise underlying the harassing conduct described in the letter").
Plaintiff also argues that an "official of the defendant told plaintiff that she could go to Diversity Management," and this "shows a recognition . . . that discrimination was implemented." (Pl. Br. 23 (citing Rommage Decl. ¶ 22).) However, plaintiff's declaration does not support this assertion because it does not make any reference to anyone informing plaintiff she could go to Diversity Management. ( See Rommage Decl. ¶ 22.) Moreover, plaintiff did not notify Diversity Management of her complaint until on January 11, 2007, which is after she had received the allegedly retaliatory discipline. ( See Def.'s 56.1 Stmt. ¶ 134; Pl.'s 56.1 Stmt. ¶ 134.) Therefore, the discipline could not have been in retaliation because it was imposed before defendant was aware that plaintiff's complaints were on the basis of race and gender.
Additionally, plaintiff has failed to allege an adverse employment action because she was reinstated with back pay. See, e.g., Almonte v. Coca-Cola Bottling Co., 959 F. Supp. 569, 572-73 (D. Conn. 1997) (no adverse action where reinstated with back pay); see also Washington v. County of Rockland, 211 F. Supp. 2d 507, 514 (S.D.N.Y. 2002). Finally, as with plaintiff's claim of discrimination, the decision by the arbitrator "is highly probative of the absence of discriminatory intent" and "will attenuate a plaintiff's proof of the requisite causal link" between the termination and the protected activity. Collins, 305 F.3d at 119; Gallimore, 354 F. Supp. 2d at 490-91. In sum, plaintiff has failed to establish a prima facie case of retaliation with regard to her internal complaint.
2. Plaintiff Has Failed to Establish a Prima Facie Case With Regard to the May 9, 2007 EEOC Complaint
Plaintiff also fails to demonstrate a prima facie case with regard to the May 9, 2007 EEOC complaint. Plaintiff alleges that defendant terminated her in October 2007 in retaliation for filing an EEOC complaint in May 2007.
Defendant argues that a five-month period is insufficient to establish a causal connection between the complaint and the adverse employment action. A "causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action." Manoharan v. Columbia Univ. Coll. of Physicians Surgeons, 842 F.2d 590, 593 (2d Cir. 1988). However, "the cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be very close." Cunningham v. Consolidated Edison Inc., 2006 WL 842914, at *19 (E.D.N.Y. Mar. 28, 2006) (quoting Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, (2001) (internal quotation marks omitted)).
Defendant is correct that the five-month period is insufficient to demonstrate a causal connection. See, e.g., Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85-86 (2d Cir. 1990) (period of three and a half months was insufficient); Garrett v. Garden City Hotel, Inc., 2007 WL 1174891 at *20-21 (E.D.N.Y. Apr. 19, 2007) (two and one-half months in between plaintiff's "most recent complaint of racial discrimination" and her discharge "preclude[d] a finding of a causal connection between the protected activity and the adverse employment action."); Cobian v. New York City, 2000 WL 1782744, at *18 (S.D.N.Y. Dec. 6, 2000) (holding that, standing alone, a four-month gap was insufficient), aff'd 23 Fed. Appx. 82 (2d Cir. 2001).
Plaintiff also relies on the same evidence used to support her discrimination claim, which is rejected for the reasons discussed above. Finally, as noted above, the decision by the arbitrator "is highly probative of the absence of discriminatory intent" and "will attenuate a plaintiff's proof of the requisite causal link" between the termination and the protected activity. Collins, 305 F.3d at 119; Gallimore, 354 F. Supp. 2d at 490-91. Therefore, plaintiff has failed to establish a prima facie case of retaliation with regard to her EEOC complaint.
E. New York State Claims
Plaintiff also alleges race, gender and age discrimination, as well as retaliation, pursuant to the New York City Administrative Code. Claims pursuant to the New York City Administrative Code are analyzed under the same standards used for Title VII claims. See Dixon v. City of New York, 2008 WL 4453201, at *10 n. 6 (E.D.N.Y. Sept. 30, 2008) (claims for retaliation brought pursuant to New York City Administrative Code § 8-107(7) are governed by substantially the same burdens and standards as those employed in the Title VII context); Hurd v. New York Health Hosps. Corp., 2007 WL 678403, at *11 (S.D.N.Y. Mar. 5, 2007) ("On a motion for summary judgment, employment discrimination claims brought under Title VII, 42 U.S.C. § 1981, the ADEA, and New York State and City statutes are analyzed under identical standards.").
As described above, plaintiff has failed to establish that her dismissal was the result of race or gender discrimination. Plaintiff has also failed to establish a prima facie case of retaliation. Additionally, plaintiff has put forth no evidence of age discrimination. Accordingly, defendant is granted summary judgment on these claims as well.
Even if such a dismissal were inappropriate, the court would decline to exercise supplemental jurisdiction over the New York claims in the absence of their federal counterpart. See Motorola Credit Corp. v. Uzan, 388 F.3d 39, 55 (2d Cir. 2004) (citations omitted) ("Our Court has held, as a general proposition, that if [all] federal claims are dismissed before trial . . . the state claims should be dismissed as well.").
Conclusion
For the foregoing reasons, the defendant's motion for summary judgment is granted and the complaint is dismissed in its entirety.
SO ORDERED.
Dated: Brooklyn, New York
September 30, 2010