In Blair v. N.Y. City Transit Auth., No. 14-CV-5091 (ENV)(PK), 2016 WL 6405900 (E.D.N.Y. Oct. 27, 2016), the court dismissed plaintiff’s claims of gender, age, disability, race, and national origin employment discrimination claims. Plaintiff, a black man, worked as a bus driver for the NYC Transit Authority. NYCTA terminated him after an incident involving alleged inappropriate conduct involving a 14 year old passenger.
Initially, the court dismissed plaintiff’s gender, age, and disability claims, since he did not assert those claims in his EEOC charge, and thus did not meet the “administrative exhaustion” requirement as to those claims. In addition, none of the circumstances permitting a plaintiff to bring unexhausted discrimination claims were present.
Turning to the merits of plaintiff’s race discrimination claim, the court explained:
[T]o establish a prima facie case of Title VII discrimination, Blair must show that: (1) he is a member of a protected class, (2) he was qualified for the position he sought, (3) he suffered an adverse employment action, and, as previously noted, (4) he can sustain a minimal burden of showing facts suggesting an inference of discriminatory motivation. Littlejohn, 795 F.3d at 311. The same standard applies under NYSHRL. Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 (2d Cir. 2000); Helmes v. S. Colonie Cent. Sch. Dist., 564 F. Supp. 2d 137,152 (N.D.N.Y. 2008). There is no dispute that Blair, as a black male from Guyana who was terminated after 12 years of service, satisfies the first three prongs of the test set out in Littlejohn. The only remaining question is whether his claim makes the requisite minimal showing suggesting an inference of discriminatory motivation.
Such an inference can arise from circumstances including, but not limited to, “the more favorable treatment of employees not in the protected group ….” Id. at 312. When a plaintiff attempts to make this showing in the context of disparate disciplinary treatment, he must show that he was subject to an adverse employment action and that “a similarly situated employee not in the relevant protected group received better treatment.” Carter, 310 Fed.Appx. at 457 (citation omitted). Specifically, a plaintiff must show that he “engaged in an act of ‘comparable seriousness,’ but was punished more severely than similarly situated coworkers based on an application of disciplinary rules or a code of conduct.” Id. (citation omitted). Moreover, since the circumstances in each case will vary, courts must make an “independent determination” about whether the specific facts pleaded provide evidence of disparate treatment. Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000) (citation omitted).
With this objective before him, plaintiff attempts to show disparate treatment by proffering one example: the experience of a white colleague who was also embroiled in a scandal involving a minor. In the other instance, as recounted by Blair, the employee exchanged personal information and began a relationship with a 16-year-old female passenger. Compl. ¶ 78. According to Blair, although NYCTA subjected this employee to an investigation and disciplinary proceeding, only a 30-day suspension was imposed. Id. On this lone example, he grounds his claim for race-based discriminatory treatment.
Viewed in the light most favorable to Blair, these facts cannot sustain his claim, even at the pleading stage. Simply put, Blair has not “show[n] [he] was similarly situated in all material respects to the individual[ ] with whom [he] seeks to compare [him]self.” Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (citation omitted) (emphasis added). Soliciting the contact information of a 16-year-old passenger and initiating a relationship with her is, certainly, an act worthy of disciplinary action; it is also, unquestionably, not as grave an infraction as confining a 14-year-old passenger in a bus, at night, by herself, and refusing, despite her repeated pleas, to release her. When compounded, moreover, with the allegations that Blair had made inappropriate and unwarranted comments to his 14-year-old victim on prior occasions, it is clear that the more severe punishment imposed on Blair, that was sustained by arbitration, was not nearly comparable to the proffered example upon which the disparate treatment claim rests to meet a minimal test of discriminatory motivation. Thus, because Blair fails to plausibly allege sufficient facts to show that defendant treated a similarly situated white employee more favorably, he failed to plausibly state a claim for race discrimination. Cf. Zuk v. Onondaga Cty., 471 Fed.Appx. 70, 72 (2d Cir. 2012) (affirming summary judgment in favor of employer, and noting that conduct of comparator employee was not of comparable seriousness); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir. 1999); see also Opoku v. Brega, No. 15-CV-2213 (KMK), 2016 WL 5720807, at *9 (S.D.N.Y. Sept. 30, 2016) (granting motion to dismiss, and finding that “[p]laintiff’s allegations that [comparator employees] committed mistakes but were not formally written up” did not “plausibly support a minimal inference that [p]laintiff’s violations/discipline report and various attitude-related write-ups were motivated at least in part by racial discrimination”); Weslowski v. Zugibe, 14 F. Supp. 3d 295, 317-21 (S.D.N.Y. 2014) (“Plaintiff’s conduct—viewing sexually explicit materials—is not of ‘comparable seriousness’ to [comparator employees’ conduct of using work computers to engage in photo swapping, joke-telling, and job searching, among other things].”); Jenkins v. St. Luke’s-Roosevelt Hosp. Ctr., No. 09 CIV. 12 (RMB MHD), 2009 WL 3682458, at *8 (S.D.N.Y. Oct. 29, 2009) (“Plaintiff’s claim based upon disparate disciplinary treatment fails because Plaintiff does not allege that [the comparator employee]’s conduct was ‘of comparable seriousness’ to the conduct for which Plaintiff was terminated.”).
The void in Blair’s factual allegations is manifest. Aside from this one concrete, but most incomparable example given, among other things, the absence of physical confinement, plaintiff offers only vague and general allegations –for instance, he states without elaboration that the disciplinary process at NYCTA disparately impacts minority employees, who he alleges, prevail in a lower percentage of their appeals than do their white colleagues, Compl. ¶¶ 69-70, and that defendant makes no “attempt to screen candidates” in a way that eliminates racial bias. Compl. ¶¶ 66-67. Nowhere, however, does plaintiff offer any facts to substantiate these conclusory allegations. They are his perceptions and conclusions, at best. As previously noted, a court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 2944, 92 L.Ed. 2d 209 (1986). Indeed with no facts to offer in support of his conclusions of racial bias, plaintiff’s “conclusory allegation is insufficiently specific to plausibly plead an adverse” policy. Wright v. Monroe Cmty. Hosp., 493 Fed.Appx. 233, 237 (2d Cir. 2012); see also Lopez v. Bay Shore Union Free Sch. Dist., 668 F. Supp. 2d 406, 414 (E.D.N.Y. 2009) (“[T]he Court finds that this Circuit continues to require that racial animus be plead with particularity.”). (Emphasis added.)
The court therefore dismissed with prejudice plaintiff’s race and national origin discrimination claims – the latter based on the fact that plaintiff did “not identify the national origin of the employee he relies upon to show disparate treatment” – under Title VII, 42 USC § 1981, and the New York State and City Human Rights Laws.