DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION

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					                        UNITED STATES DISTRICT COURT
                          DISTRICT OF CONNECTICUT


RAYMOND NORRIS,                             CIVIL ACTION NO.
                            Plaintiff,      3:06 CV 0439 (JBA)

              - against -
METRO-NORTH COMMUTER RAILROAD
COMPANY, JAMES J. GILLIES, and JOSEPH
CLEARY,
                            Defendants.
                                            March 30, 2007


           DEFENDANTS' MEMORANDUM OF LAW IN SUPPORT OF
               THEIR MOTION FOR SUMMARY JUDGMENT
                                               TABLE OF CONTENTS

                                                                                                                                 Page
I.     PRELIMINARY STATEMENT ....................................................................................... 1
II.    UNDISPUTED FACTS ..................................................................................................... 1
       A.        Metro-North ........................................................................................................... 1
       B.        Plaintiff’s Employment at Metro-North................................................................. 3
                 1.         Plaintiff’s Disciplinary And Safety History............................................... 5
                 2.         Plaintiff’s CHRO Charges and Federal Complaints .................................. 7
III.   ARGUMENT..................................................................................................................... 9
       A.        Plaintiff Cannot Succeed on His Title VII Discrimination Claim. ...................... 10
                 1.         Plaintiff Cannot Present A Prima Facie Case Of Discrimination ............ 11
                            a.         Plaintiff Cannot Prove That Metro-North Denied Him
                                       Promotions Because Of His Race ................................................ 12
                                       (1)        Assistant Power Director Position ................................... 12
                                       (2)        Supervisor Power Training/Procedures Position ............. 14
                            b.         Plaintiff Cannot Prove That Metro-North Disciplined Him
                                       Because Of His Race ................................................................... 15
                            c.         Plaintiff Cannot Show That He Was Constructively
                                       Discharged ................................................................................... 18
                 2.         Plaintiff Cannot Prove Metro-North’s Legitimate Non-
                            Discriminatory Reasons For Its Actions Are Pretext For
                            Discrimination.......................................................................................... 20
       B.        Plaintiff Cannot Succeed On His Retaliation Claim............................................ 21
                 1.         Plaintiff Did Not Have A Good Faith, Reasonable Belief To Bring
                            Claims Of Race Discrimination ............................................................... 22
                 2.         Plaintiff Did Not Suffer A Materially Adverse Action............................ 23
                 3.         There Is No Causal Connection Between The Claimed Protected
                            Activity And The Alleged Adverse Actions............................................ 26
       C.        Plaintiff’s Section 1981 Claim Must Be Dismissed ............................................ 27
       D.        Plaintiff Cannot Succeed On His Claim For Intentional Infliction Of
                 Emotional Distress ............................................................................................... 29
                 1.         The Railway Labor Act Preempts Plaintiff’s Tort Claims....................... 31
                 2.         None of Metro-North’s Actions Were Outrageous.................................. 33
IV.    CONCLUSION................................................................................................................ 36



                                                                 -i-
                                                               CASES
Allis-Chalmers v. Lueck,
    471 U.S. 202 (1985)............................................................................................................... 31
Alston v. New York City Transit Auth.,
    1999 WL 540442 (S.D.N.Y. July 26, 1999) .......................................................................... 27
Alungbe v. Bd. of Trustees of Conn. State. Univ. (CSU) Sys.,
    283 F. Supp. 2d 674 (D. Conn. 2003).................................................................................... 11
Ancona v. Manafort Bros., Inc.,
    56 Conn. App. 701 A.2d 184 (2000) ..................................................................................... 29
Anderson v. Coca Cola Bottling Co.,
    772 F. Supp. 77 (D. Conn. 1991)........................................................................................... 32
Anderson v. Liberty Lobby,
    477 U.S. 242 (1986)........................................................................................................... 9, 10
Appleton v. Board of Educ.,
    254 Conn. 205 A.2d 1059 (2000) .......................................................................................... 29
Bartholomew v. AGL Resources, Inc.,
    361 F.3d 1333 (11th Cir. 2004) ............................................................................................. 31
Bass v. Nynex,
    02 Civ. 5171 (DLC) 2004 U.S. Dist. LEXIS 17978 (S.D.N.Y. Sept. 1, 2004) ..................... 20
Beason v. United Techs. Corp.,
    213 F. Supp. 2d 103 (D. Conn. 2002), aff’d, 337 F.3d 271 (2d Cir. 2003) ............................. 9
Bielicke v. Terminal R.R. Ass’n,
    30 F.3d 877 (7th Cir. 1994) ................................................................................................... 33
Brown v. City of Oneonta,
    221 F.3d 329 (2d Cir.1999), cert. denied, 534 U.S. 816 (2001)............................................ 28
Burlington Northern & Santa Fe Railway Co. v. White,
    126 S. Ct. 2405 (2006)..................................................................................................... 21, 24
Butts v. City of N.Y. Dep’t of Hous. Pres. & Dev.,
    990 F.2d 1397 (2d Cir. 1993)................................................................................................. 12
Byrnie v. Town of Cromwell, Bd. of Educ.,
    243 F.3d 93 (2d Cir. 2001)................................................................................... 12, 14, 15, 21
Calvert v. Trans World Airlines, Inc.,
    959 F.2d 698 (8th Cir. 1992) ................................................................................................. 32
Carmellino v. District 20 of New York City Dept. of Educ.,
    No. 03 Civ 5942 PKC, 2006 WL 2583019 (S.D.N.Y. Sept. 6, 2006) ................................... 20
Celotex Corp. v. Catrett,
    477 U.S. 317 (1986)................................................................................................................. 9
Clark County School District v. Breeden,
     532 U.S. 268 (2001).............................................................................................................. 26
Collins v. New York City Transit Auth.,
    305 F.3d 113 (2d Cir. 2002)................................................................................................... 10
Colter v. Yale Univ.,
    No. 3:97CV2024 (RNC), 2000 WL 559023 (D. Conn. Mar. 24, 2000) ................................ 19


                                                                     i
Culp v. United Pac. R.R. Co.,
    200 F. Supp. 2d 1099 (E.D. Mo. 2001).................................................................................. 33
Deffenbaugh-Williams v. Wal-Mart Stores, Inc.,
    156 F.3d 581 (5th Cir. 1998) ................................................................................................. 28
DeLeon v. Little,
    981 F.Supp. 728 (D. Conn. 1997).......................................................................................... 35
Dichello v. Marlin Firearms Co.,
    No. CV06500296S, 2007 WL 429474 (Conn. Super. Ct. Jan. 22, 2007).............................. 35
Douglas v. Am. Info. Techs. Corp.,
    877 F.2d 565 (7th Cir. 1989) ........................................................................................... 31, 32
Duse v. Int’l Bus. Machines Corp.,
    252 F.3d 151 (2d Cir. 2001)................................................................................................... 33
Eden Park Mgmt., Inc. v. Schrull,
    No. LLICV065000731S, 2007 WL 706583 (Conn. Super. Ct. Feb. 14, 2007) ..................... 35
Edwards v. Metro-North Commuter R.R. Co.,
    No. 3:04cv1430 (D. Conn. 2006)............................................................................... 15, 17, 31
Ellis v. Lloyd,
    838 F. Supp. 704 (D. Conn. 1991)......................................................................................... 31
Evarts v. So. New England Tel. Co.,
    No. 3:00 CV 1124 WIG, 2006 WL 2864716 (D. Conn. Oct. 2, 2006).................................. 24
Flibotte v. Pennsylvania Truck Lines, Inc.,
    131 F.3d 21 (1st Cir. 1997), cert. denied, 523 U.S. 1123 (1998) ......................................... 31
Fry v. Airline Pilots Ass'n, Intern.,
    88 F.3d 831 (10th Cir. 1996) ................................................................................................. 31
Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp.,
    136 F. 3d 276 (2d Cir. 1998).................................................................................................. 22
Gallo v. Prudential Residential Serv., Ltd. P’ship,
    22 F.3d 1219 (2d Cir. 1994)................................................................................................... 10
Gonzalez v. Beth Israel Med. Ctr.,
    262 F.Supp.2d 342 (S.D.N.Y. 2003)...................................................................................... 25
Graham v. Long Island R.R.,
    230 F.3d 34 (2d Cir. 2000)..................................................................................................... 15
Guerrero v. Conn. Dep’t of Children & Families,
    315 F. Supp. 2d 202 (D. Conn. 2004).............................................................................. 16, 17
Hall v. So. Cent. Conn. Reg’l Water Auth.,
    28 F.Supp.2d 76 (D. Conn. 1998), aff’d, 201 F.3d 431 (2d Cir.1999) .................................. 28
Harhay v. Blanchette,
    160 F. Supp. 2d 306, 315 (D. Conn. 2001) aff’d in part and rev’d in part on
    other grounds, 323 F.3d 206 (2d Cir. 2003) .................................................................... 29, 35
Hawaiian Airlines, Inc. v. Norris,
    512 U.S. 246 (1994)............................................................................................................... 31
Hill v. Pinkerton Sec. & Investigation Servs., Inc.,
    977 F. Supp. 148 (D. Conn. 1997)......................................................................................... 33



                                                                    ii
Hollander v. American Cynamid Co.,
   895 F.2d 80 (2d Cir. 1990)..................................................................................................... 26
Holmes v. Securities Investor Protection Corp.,
   503 U.S. 258 (1992)............................................................................................................... 28
Holt v. KMI-Continental, Inc.,
   95 F.3d 123 (2d Cir. 1996)..................................................................................................... 26
Huff v. West Haven Board of Educ.,
   10 F.Supp.2d 117 (D. Conn. 1998)........................................................................................ 33
Hughes v. Derwinski,
   967 F.3d 1168 (2d Cir. 1992)................................................................................................ 27
Iuorno v. Dupont Pharm. Co.,
   129 Fed. Appx. 637 (2d Cir. 2005)........................................................................................ 16
James v. New York Racing Ass’n,
   233 F.3d 149 (2d Cir. 2000)................................................................................................... 20
Jamilik v. Yale Univ.,
   No. 3:06 CV 0566 (PCD), 2007 WL 214607 (D. Conn. Jan. 25, 2007)................................ 35
Johnson v. Conn. Dep’t of Corrections,
   392 F. Supp. 2d 326 (D. Conn. 2005).............................................................................. 12, 14
Johnson v. Merrell Dow Pharmaceuticals, Inc.,
   965 F.2d 31 (5th Cir. 1992) ................................................................................................... 33
Johnson v. Palma,
   931 F.2d 203 (2d Cir. 1991)................................................................................................... 22
Kellman v. Yale-New Haven Hosp.,
   64 F. Supp. 2d 35 (D. Conn. 1999).................................................................................. 31, 32
Kern v. City of Rochester,
   93 F.3d 38 (2d Cir. 1996) ...................................................................................................... 28
Lipsett v. Univ. of P.R.,
   864 F.2d 881 (1st Cir. 1988).................................................................................................. 28
Louis v. Latex Int’l,
   No. 3:06-cv-00719 (WWE), 2007 WL 274529 (D. Conn. Jan. 29, 2007)............................. 35
Manoharon v. Columbia Univ. College of Physicians & Surgeons,
   842 F.2d 590 (2d Cir. 1988)............................................................................................. 22, 23
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
   475 U.S. 574 (1996)................................................................................................................. 9
McDonnell Douglas Corp. v. Green,
   411 U.S. 792 (1973)............................................................................................................... 10
McLee v. Chrysler Corp.,
   109 F.3d 130 (2d Cir. 1997)................................................................................................... 10
Miner v. Town of Cheshire,
   126 F. Supp. 2d 184 (D. Conn. 2000).............................................................................. 30, 33
Nicastro v. Runyon,
   60 F.Supp.2d 181 (S.D.N.Y. 1999)........................................................................................ 24




                                                                   iii
Norris v. Metro-North Commuter R.R. Co.,
    Civ. No. 3:05-cv-00911 (JCH) (D. Conn. filed June 6, 2005)................................................. 8
Padilla v. Harris,
    285 F. Supp. 2d 263 (D. Conn. 2003).............................................................................. 16, 17
Penn. State Police v. Suders,
    542 U.S. 129 (2004)............................................................................................................... 18
Peters v. City of Stamford,
    3:99-CV-796, 2003 WL 1343265 (D. Conn. Mar. 17, 2003) ................................................ 21
Petrosino v. Bell Atlantic,
    385 F.3d 210 (2d Cir. 2004)................................................................................................... 18
Petyan v. Ellis,
    200 Conn. 243, 510 A.2d 1337, 1342-43 (Conn. 1986), superseded by statute
    on other grounds .................................................................................................................... 33
Reed v. A.W. Lawrence & Co., Inc.,
    95 F.3d 1170 (2d Cir. 1996)................................................................................................... 22
Richmond v. Oneok, Inc.,
    120 F.3d 205 (10th Cir. 1997) ............................................................................................... 26
Scaria v. Rubin,
    94 Civ. 333 (Peck, M.J.), 1996 WL 389250 (S.D.N.Y. July 11, 1996), aff’d,
    117 F.3d 652 (2d Cir. 1997)................................................................................................... 21
Seery v. Yale-New Haven Hosp.,
    17 Conn. App. 532, 554 A.2d 757 (Conn. App. Ct. 1989) .................................................... 18
Shah v. Consol. Edison Corp.,
    04 Civ. 2880 (JSR), 2005 U.S. Dist. LEXIS 4012 (S.D.N.Y. Mar. 14, 2005),
    aff’d, 175 Fed. Appx. 436 (2d Cir. 2006) .............................................................................. 27
Shumway v. United Parcel Serv., Inc.,
    118 F.3d 60 (2d Cir. 1997)..................................................................................................... 15
Silverman v. New York,
    216 F.Supp.2d 108 (E.D.N.Y. 2002), aff'd, 64 Fed. Appx. 799 (2d Cir. 2003)..................... 20
Simon v. N.Y.C. Bd. of Educ.,
    No. 01-CV-6024, 2006 WL 1210959 (E.D.N.Y. May 2, 2006) ............................................ 26
Smith v. Houston Oilers, Inc.,
    87 F.3d 717 (5th Cir.), cert. denied, 117 U.S. 510 (1996)..................................................... 31
Spence v. Maryland Cas. Co.,
    995 F.2d 1147 (2d Cir. 1993)................................................................................................. 19
St. John v. Internat’l Ass’n of Machinists,
    139 F.3d 1214 (8th Cir. 1998) ............................................................................................... 31
St. Mary’s Honor Ctr. v. Hicks,
    509 U.S. 502 (1993)............................................................................................................... 10
Stembridge v. City of N.Y.,
    88 F.Supp.2d 276 (S.D.N.Y.), aff'd, 2000 U.S. App. LEXIS 38697 (2d Cir.
    2000) ...................................................................................................................................... 20
Terry v. Ashcroft,
    336 F.3d 128 (2d Cir. 2003)................................................................................................... 18


                                                                        iv
Texas Dep’t of Community Affairs v. Burdine,
   450 U.S. 248 (1981)......................................................................................................... 10, 11
Timmons v. City of Hartford,
   283 F.Supp.2d 712 (D. Conn. 2003)...................................................................................... 28
Tomka v. Seiler Corp.,
   66 F.3d 1295 (2d Cir.1995).................................................................................................... 10
Valentine v. Standard & Poor’s,
   No. 97 Civ. 0005, 1999 WL 436772 (S.D.N.Y. June 24, 1999)............................................ 27
Warth v. Seldin,
   422 U.S. 490 (1975)............................................................................................................... 28
Wells v. Town of Plainfield,
   No. CV020068211, 2005 WL 375293 (Conn. Super. Jan. 11, 2005).................................... 18
White v. Martin,
   23 F. Supp. 2d 203, 208 (D. Conn. 1998), aff'd, 198 F.3d 235 (2d Cir. 1999)...................... 34
Williams v. Perry,
   960 F. Supp. 534 (D. Conn. 1996)......................................................................................... 35
Woods v. Enlarged City School Dist. of Newburgh,
   No. 04 Civ 9106 (WCC), 2007 WL 431016 (S.D.N.Y. Feb. 07, 2007) ................................ 22
Zelnik v. Fashion Institute of Technology,
   464 F.3d 217 (2d Cir. 2006)................................................................................................... 24
Zephyr v. Ortho McNeil Pharm.,
   62 F. Supp. 2d 599 (D. Conn. 1999)...................................................................................... 18

                                                         STATUTES
42 U.S.C. § 1981.......................................................................................................................... 27
42 U.S.C. § 2000e-5(e)(1)............................................................................................................ 11
45 U.S.C. § 151............................................................................................................................ 31
Railway Labor Act, 45 U.S.C. § 151 ............................................................................................. 2
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e ................................ 10

                                  OTHER AUTHORITIES
Restatement (Second) Of Torts § 46 cmt. d, 73 (1965) ............................................................... 29
Restatement (Second) of Torts § 46 cmt. g.................................................................................. 33

                                                          RULES
Fed. R. Civ. P. § 56(c) ................................................................................................................... 9
Fed. R. Civ. P. § 56(e) ................................................................................................................... 9




                                                                      v
               Defendants Metro-North Commuter Railroad Company (“Metro-North”), James

J. Gillies and Joseph Cleary (collectively, “Defendants”) hereby submit this memorandum of law

in support of their motion for summary judgment.

 I.      PRELIMINARY STATEMENT

               Plaintiff Raymond Norris’s complaint should be dismissed because there are no

genuine issues of material fact. He complains he was not awarded promotions for which

indisputably better-qualified applicants were selected. He complains about discipline which

followed his undisputed violations of safety procedures, without citing any evidence suggesting

that his race or his complaints of discrimination had anything to do with Metro-North’s

invocation of the disciplinary procedure under the collective bargaining agreement (“CBA”). He

complains about routine decisions of his supervisors under the CBA that were neither the subject

of administrative complaints to the Equal Employment Opportunity Commission (“EEOC”) or

the Connecticut Commission on Human Rights and Opportunities (“CHRO”), nor grievances

under the CBA. And he complains about his resignation from Metro-North, which he voluntarily

tendered in October 2005, as Metro-North was attempting to qualify him to return to work from

a lengthy medical leave of absence.

               Plaintiff has no admissible evidence of a discriminatory or retaliatory motive for

any of Defendants’ actions. His claim under § 1981 and his claim of intentional infliction of

emotional distress comprise superfluous allegations having no basis in law or fact. Therefore,

Defendants’ motion should be granted.

 II.     UNDISPUTED FACTS

       A.      Metro-North

               Metro-North is a public benefit corporation and a subsidiary of the Metropolitan

Transit Authority (“MTA”), a public authority of the State of New York. N.Y. Pub. Auth. L.


                                                1
§ 1260 et seq. (McKinney 1999). Metro-North operates 24 hours a day, seven days a week,

running nearly 600 trains each weekday and over 300 trains each weekend and holiday.

Affidavit of David DiStasio dated March 30, 2007 (“DiStasio Aff.”) ¶ 4. Metro-North maintains

a strict Equal Opportunity and Diversity Policy, as well as strong policies against all forms of

discrimination, harassment, and/or retaliation. See Metro-North Operating Procedures No. 21-

014, attached as Ex. 1 to Affidavit of Christine Button.1

                  As required by the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq., the

working conditions, rates of pay and rules regarding Plaintiff’s employment with Metro-North,

including discipline, are governed by the CBA between Metro-North and the International

Brotherhood of Electrical Workers (the “Union”). See 45 U.S.C. § 151 et seq.; see also Ex. 2.

The CBA mandates a multi-step procedure for adjudicating discipline. Id. at 32-35. At the first

step, which takes place within the employing department, employees are entitled to attend a pre-

trial meeting, accompanied by union representation. Id. At this meeting, Metro-North may offer

the accused employee an opportunity to plead guilty to the offense and accept discipline in lieu

of a trial (a “waiver”). DiStasio Aff. ¶ 11. Second, if a waiver is rejected, a trial is held, and the

department head (or his designee) determines discipline based on a review of the trial transcript

and the employee’s disciplinary record. Id. ¶ 10. The CBA provides for progressively severe

discipline for repeated violations of operating rules. Id. The CBA also provides for two appeals,

an intra-Company appeal to the Labor Relations Department and a final appeal to a special

neutral board of adjustment, one of several types of boards of adjustment (“Arbitration Boards”)

sanctioned by the RLA, 45 U.S.C. § 153. Ex. 2 at 32-35. Arbitration Board awards are “final


1
  Unless otherwise specified, all exhibits cited herein are exhibits to the Affidavit of Christine Button, filed
contemporaneously herewith.




                                                            2
and binding,” 45 U.S.C. § 153(m), and subject to judicial review on very limited grounds. 45

U.S.C. § 153 First (q).

               Defendant James Gillies (“Gillies”) has been a Metro-North employee for

approximately 31 years and has been the Director of Power Systems for the past seven years.

Ex. 3, Gillies Dep. at 8-9. In this role, Gillies supervises over 300 employees and assesses

discipline, where appropriate, in accordance with the CBA. Id. at 9-10, 25-27.

               Defendant Joseph Cleary (“Cleary”) is General Supervisor, Overhead Line

Department, and has been a Metro-North employee for over 36 years. Ex. 4, Cleary Dep. at 15-

16. In this role, Cleary supervises approximately 55 employees, including foremen, who are

responsible for the inspection, repair, and construction of overhead electrical lines (known as the

“catenary” system) that power the trains on Metro-North’s New Haven line. Id. at 16-17.

Although he is a supervisor, Cleary is a Union-represented employee who has no authority to

impose discipline. Id. at 75-77. He is, however, authorized to “disqualify” employees from

performing Class A lineman duties pending the formal disciplinary process, in the event they

violate work rules. Id. at 50. Before resigning, Plaintiff worked in the Overhead Line

Department under Cleary’s indirect supervision. Ex. 5, Sept. 26, 2006 Norris Dep. at 96.

       B.      Plaintiff’s Employment at Metro-North

               Metro-North hired Plaintiff on July 27, 1987 as a Lineman/Apprentice in its

Power Department. See Ex. 5, Norris Dep. at 94. In 1991, he was qualified as a “Class A”

lineman. Id. at 96. Plaintiff was promoted to the position of Foreman in August 1998, and the

following year he was promoted to the position of Vacation Relief Foreman. See Exs. 5-7.

               Linemen build, repair and maintain electrical systems, pole lines and supports for

railroad electrical services. Ex. 8; Ex. 4, Cleary Dep. at 16-17; Ex. 2, CBA at 70. Foremen are

responsible for overseeing the work of a “gang,” often consisting of linemen and apprentice


                                                 3
linemen working on or near the railroad’s overhead power lines. DiStasio Aff. ¶ 7. When work

is performed on or near a section of the catenary system, the electrical power in that section must

be turned off, a process known of “obtaining a clearance.” Only a Class A qualified lineman is

authorized to oversee that process. Id. ¶ 5. Because Class A linemen are paid at the same hourly

rate as linemen, the principal value of the Class A qualification is the overtime that may be

associated with providing “protection” to outside contractors and Metro-North employees who

are working on or near the catenary system. Id. Absent a disciplinary disqualification, foremen

are typically Class A qualified. Id. ¶ 7.

               To obtain a clearance, a Class A qualified lineman or foreman must: (1) identify

the section of track to be de-energized; (2) contact the Power Control Center (“PCC”), identify

correctly the section of track and request that it be de-energized by the PCC; (3) confirm with the

PCC that the electrical current in that section has been switched off and will remain off until the

Class A qualified lineman or foreman informs the PCC that the work has been completed and the

grounding devices are removed, by verbally receiving a “sheet number” for the MP-260

Clearance Form and repeating the information back to the PCC; (4) test the section of track to

determine whether the power has been turned off; (5) apply electrical grounds at appropriate

points on the de-energized section of the catenary system to release any residual electrical

current and to disburse any electromagnetically induced current that may enter the system from

nearby lines. Affidavit of Anthony Anderson dated Mar. 29, 2007 (“Anderson Aff.”) ¶ 6.

Applying a grounding device to an energized line or re-energizing a line prior to removing a

grounding device is referred to as “hooking a hot one.” Id. ¶ 10. The overhead lines carry over

13,000 volts of electricity. Id. ¶ 6. This work is exacting: If all grounding devices are not




                                                 4
disconnected when the line is re-energized, an explosion will occur that can cause severe

personal injury, property damage, and/or train delays. Id.

                 1.       Plaintiff’s Disciplinary And Safety History

                 During the course of his employment, Plaintiff was disciplined for violating

Metro-North’s policies and procedures. In October 1991, he was reprimanded for failing to

properly operate a company vehicle after he was involved in an accident. See Ex. 9. In January

1994, he was disciplined for failing to properly operate a maintenance vehicle, resulting in

damage to the platform railings. He signed a waiver for a one-day suspension. See Ex. 10. In

January 1996, he was charged with dereliction of duty and verbally counseled for leaving work

without permission. See Ex. 11. In July 1996, he was formally warned of excessive

absenteeism. See Ex. 12.

                 On January 8, 2004, Plaintiff failed to remove a grounding device before re-

energizing an overhead electrical line, which resulted in a small explosion (the “January 8th

Incident”). See Anderson Aff. ¶¶ 5, 7, & Ex. A thereto. See also Ex. 13. Plaintiff’s supervisor,

Anthony Anderson, witnessed the incident but at the time did not report it to the Catenary

Department’s Director, David DiStasio (“DiStasio”), because the violation did not result in any

property damage or train delays. To Anderson’s knowledge, Plaintiff had never committed this

type of a safety violation before. Id. ¶ 9.2 Plaintiff was not subject to any discipline for the

incident. Id.

                 The following month, on February 18, 2004, Plaintiff again failed to remove a

grounding device before re-energizing an overhead line, this time causing damage to Metro-

2
 DiStasio first learned of the January incident in early March 2004, when he spoke with Anderson after the pre-trial
meeting with Plaintiff to discuss his February 18th safety violation. Anderson Aff. ¶ 10;DiStasio Aff ¶ 13; see also
Ex. 13. DiStasio later verbally reprimanded Anderson for failing to report the January incident. DiStasio Aff. ¶ 13.




                                                         5
North’s signal system and significant train delays (the “February 18th Incident”). See Exs. 14,

15. Because of the serious nature of the incident, Cleary disqualified Plaintiff as a Class A

lineman pending the pre-trial meeting provided for in the CBA. Distasio Aff. at ¶ 8; see also

Ex. 15.

               Plaintiff committed a third safety violation on February 28, 2004, a mere ten days

after the February 18th Incident. See Ex. 16. This time, Plaintiff improperly operated a Catenary

Maintenance Vehicle (“CMV”) dangerously close to energized overhead wires (the

“February 28th Incident”). See Ex. 17. The incident put Plaintiff and his gang at risk of death or

serious injury and risked serious damage to the CMV, the overhead lines and other Metro-North

equipment. See id.; DiStasio Aff. ¶ 9. Following this incident, DiStasio disqualified Plaintiff as

a foreman pending the pre-trial meeting. Id.; Ex. 15.

               DiStasio held a pre-trial meeting with Plaintiff on March 8, 2004 to discuss the

February 18th Incident. Ex. 15. Plaintiff declined a waiver offered by DiStasio, under which

Plaintiff could have pled guilty to the violation in exchange for a thirty-day disqualification from

Class A classification and a ten-day “record” suspension, a type of suspension that is not served

by the employee unless he commits another safety violation within a six-month period. Id.; see

also DiStasio Aff. ¶ 9. A thirty-day disqualification is the standard discipline meted out to an

employee who does not have a record of previous safety violations, and the discipline is

uniformly applied under those circumstances. DiStasio Aff. ¶ 12. Metro-North scheduled a

disciplinary trial for March 18, 2004 to address the February 18th Incident. Ex. 18. On




                                                 6
March 10, 2004, Plaintiff went out on an extended medical leave of absence for stress-related

reasons. See Ex. 19.3 The trial scheduled for March 18th was thus postponed. See Ex. 26.

                 A pre-trial meeting to discuss the February 28th Incident initially scheduled for

March 22, 2004 was also postponed. See Ex. 27. The pre-trial meeting was eventually held on

October 18, 2004. However, no substantive discussions took place, because Plaintiff refused to

turn off a portable tape recorder. See Ex. 28. A trial was scheduled for November 22, 2004.

Ex. 29. It was also rescheduled numerous times due to Plaintiff’s medical leaves of absence.

See Ex. 30.

                 The trial concerning the February 18th Incident took place on June 13, 2005.

Ex. 31. Plaintiff was found guilty of committing a safety violation and was assessed a five-day

unpaid suspension. Ex. 14. He served the suspension from July 16 through July 20, 2005. Ex.

32. The trial concerning the February 28th Incident was held on June 20, 2005, and it resulted in

a twenty-day unpaid suspension. Exs. 16, 33. Plaintiff never served that suspension; he went out

on medical leave and never returned to work. He voluntarily resigned his employment with

Metro-North on October 24, 2005. See Ex. 25.4 Plaintiff never appealed either decision.

                 2.       Plaintiff’s CHRO Charges and Federal Complaints

                 Plaintiff filed two charges of discrimination and retaliation with the CHRO and

the EEOC, the first in March 2003, see Ex. 35, and the second in March 2004. See Ex. 36.




3
  Except for seven non-consecutive weeks, Plaintiff was out on medical leave for the last year and a half of his
employment at Metro-North: from March 10, 2004 (Ex. 20) through October 12, 2004 (Ex. 21), from October 22,
2004 (Ex. 22) through May 31, 2005 (Ex. 23), and from July 13, 2005 (Ex. 24) through October 24, 2005, when he
resigned (Ex. 25).
4
  In October 2005, just prior to Plaintiff’s resignation, he was charged with refusal to submit to a required drug
screen test, insubordination, and conduct unbecoming a Metro-North employee when he was belligerent and hostile
toward a medical technician. Ex. 34.




                                                        7
               In his March 2003 CHRO charge, Plaintiff alleged that Metro-North had

discriminated and retaliated against him by (1) preventing him from “bumping” a more junior

foreman upon his return to work in March 2002 following a medical leave of absence, thereby

forcing him to work one day as a lineman at a lower rate of pay; and (2) denying him promotions

in 2002. See Ex. 35. The CHRO found that the complaint about the bumping incident was

untimely, since the conduct occurred approximately one year before the charge was filed, and

thus was beyond the agency’s 180-day statute of limitations. The CHRO dismissed that claim

for lack of jurisdiction. See Ex. 37. As for the promotion claims, Plaintiff testified at the

March 6, 2004 CHRO fact-finding that he had been denied three promotions: (1) a Power

Director position, for which he applied in July 2002; (2) the re-posted Power Director position,

for which he applied in September 2002; and (3) a Power Training position, for which he applied

in December 2002. See Ex. 38. The CHRO found that it lacked jurisdiction over the July 2002

denial-of-promotion claim, because it was filed outside the agency’s 180-day statute of

limitations. Further, the entire charge was dismissed on a finding of no reasonable cause. See

Ex. 37. Plaintiff received a right to sue letter on April 5, 2005, and filed his first of two lawsuits

in this Court. See Norris v. Metro-North Commuter R.R. Co., Civ. No. 3:05-cv-00911 (JCH) (D.

Conn. filed June 6, 2005) (“Norris I”).

               The complaint in Norris I alleges that Plaintiff was denied three promotions in

violation of Title VII. Plaintiff also added claims regarding other acts not previously included in

his CHRO charge, including Metro-North’s (a) alleged refusal to provide protective gear to

another lineman, (b) alleged elimination of a Class A lineman position in his gang, (c) alleged

decision to require him to work in the rain, and (d) allegedly unjust discipline. Plaintiff

voluntarily dismissed Norris I with prejudice on August 16, 2006.




                                                  8
               In his March 2004 CHRO charge, Plaintiff alleged that Metro-North had

discriminated and retaliated against him by: (1) disqualifying him as a Class A lineman on or

about February 19, 2004, and (2) demoting him from his foreman position on or about March 5,

2004. See Ex. 36. Plaintiff received right to sue letters for this charge from the EEOC and the

CHRO on January 12 and 17, 2006, respectively. He filed the instant action (“Norris II”) on

March 21, 2006.

 III.    ARGUMENT

               Pursuant to Rule 56(c), summary judgment shall be granted “if pleadings,

depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,

show that there is no genuine issue as to any material fact and that the moving party is entitled to

judgment as a matter of law.” Fed. R. Civ. P. § 56(c); see also Anderson v. Liberty Lobby, 477

U.S. 242, 250 (1986). A fact is “material” if it may affect the outcome of the suit under

governing law. Anderson v. Liberty Lobby, 477 U.S. at 250. Defendants bear the initial burden

of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477

U.S. 317, 323 (1986). If they meet their initial burden, Plaintiff must do “more than simply show

that there is some metaphysical doubt as to the material facts,” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 586 (1996). and he cannot create a “genuine” issue of fact

“simply by presenting contradictory or unsupported statements.” Beason v. United Techs. Corp.,

213 F. Supp. 2d 103, 107 (D. Conn. 2002), aff’d, 337 F.3d 271 (2d Cir. 2003) (internal citations

omitted). Rather, he must come forward with “specific facts showing that there is a genuine

issue for trial.” Fed. R. Civ. P. § 56(e). When it is apparent that no rational finder of fact “could

find in favor of the nonmoving party because the evidence to support its case is so slight,”

summary judgment should be granted. Gallo v. Prudential Residential Serv., Ltd. P’ship, 22




                                                  9
F.3d 1219, 1224 (2d Cir. 1994). Furthermore, “[i]f the evidence is merely colorable, …or is not

significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50.

         A.       Plaintiff Cannot Succeed on His Title VII Discrimination Claim.5

                  Count One of the Complaint alleges race discrimination in violation of Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. A Title VII race

discrimination claim is analyzed under the three-prong burden-shifting framework of McDonnell

Douglas/Burdine. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Texas

Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Plaintiff must first

establish a prima facie case by showing: (1) he was a member of a protected group, (2) he was

performing his duties satisfactorily, (3) he was subject to an adverse employment action, and (4)

the adverse employment action occurred under circumstances giving rise to an inference of race

discrimination. Collins v. New York City Transit Auth., 305 F.3d 113, 118 (2d Cir. 2002); McLee

v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). If Plaintiff establishes his prima facie case,

Metro-North must then articulate a legitimate, non-discriminatory reason for the adverse

employment action. McDonnell Douglas, 411 U.S. at 802-04. Once Metro-North provides such

a justification, the burden shifts back to Plaintiff, who must then carry the ultimate burden of

persuasion by demonstrating by a preponderance of the evidence that improper discrimination

was a determinative factor motivating the adverse action. St. Mary’s Honor Ctr. v. Hicks, 509

U.S. 502, 507 (1993); Burdine, 450 U.S. at 252-53; McDonnell Douglas, 411 U.S. at 804.

Plaintiff must show both that the proffered reason is mere pretext and that discrimination was the

true motivating factor for the adverse action. McDonnell Douglas, 411 U.S. at 804 (emphasis
5
  The Court should also dismiss Plaintiff’s Title VII claims of discrimination and retaliation against the individual
defendants, in both their individual and official capacities. The Second Circuit has plainly held that individual
supervisors cannot be held liable under Title VII. See Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir.1995),
abrogated on other grounds by Burlington Indus. v. Ellerth, 524 U.S. 742 (1998).




                                                          10
added). “The ultimate burden of persuading the trier of fact that the defendant intentionally

discriminated against the plaintiff remains at all times with the plaintiff.” Burdine, 450 U.S. at

253.

                  1.       Plaintiff Cannot Present A Prima Facie Case Of Discrimination.

                  For purposes of this motion, Metro-North does not dispute that Plaintiff is a

member of a protected group, that he performed his job satisfactorily, except as described above,

or that he suffered certain adverse employment actions. However, as a matter of law, Plaintiff

cannot establish the fourth element of a prima facie case—i.e., he cannot show that he was

subject to any adverse employment actions under circumstances giving rise to an inference of

discrimination.

                  Plaintiff’s discrimination claims arise from promotions Metro-North denied him,

discipline it imposed upon him, and from his own voluntary resignation. For the promotion

claims, he cannot dispute that the successful candidates were far better qualified. For the

discipline claims, he does not dispute the offense and cannot show that similarly situated

employees were treated differently. And for his resignation, he cannot show that it occurred

under circumstances supporting a constructive discharge claim.6


6
  Plaintiff also alleges in his Complaint that Metro-North: (a) prevented him from exercising his seniority rights in
March 2002 from bumping a more junior foreman when he returned from a medical leave of absence; (b) forced him
and his gang to work in the rain on April 11, 2003; and (c) refused to give another lineman a fire-retardant jacket.
None of these allegations are properly before this Court. First, the March 2002 bumping incident is time-barred.
“Title VII requires that, before bringing suit under the statute, a plaintiff must first file a complaint with the EEOC
or with a state equal employment agency within 180 or 300 days, respectively, of the alleged discrimination.”
Alungbe v. Bd. of Trustees of Conn. State. Univ. (CSU) Sys., 283 F. Supp. 2d 674, 680 (D. Conn. 2003); see also 42
U.S.C. § 2000e-5(e)(1). Plaintiff did not complain about the March 2002 bumping incident until he filed his
March 7, 2003 CHRO charge, over 300 days later.
Second, Plaintiff has never complained in a CHRO or EEOC charge about the April 11, 2003 “working in the rain”
incident or about his coworker’s safety jacket. He first raised these issues in his Norris I complaint. “A district
court only has jurisdiction to hear Title VII claims that are included in an EEOC charge or are based on conduct
‘reasonably related’ to that alleged in the EEOC charge.” Alungbe, 283 F. Supp. 2d at 681. Because the April 2003
incident and the complaint about his coworker’s safety jacket are not “reasonably related” to the allegations set forth
                                                                                                      (continued...)


                                                          11
                           a.       Plaintiff Cannot Prove That Metro-North Denied Him Promotions
                                    Because Of His Race.

                  In challenging Metro-North’s promotion decisions, Plaintiff may establish his

prima facie case by showing that he was so superior to the persons selected for the job that “no

reasonable person, in the exercise of impartial judgment, could have chosen the candidate

selected over the plaintiff for the job in question.” Byrnie v. Town of Cromwell, Bd. of Educ.,

243 F.3d 93, 103 (2d Cir. 2001). See also Johnson v. Conn. Dep’t of Corrections, 392 F. Supp.

2d 326, 338 (D. Conn. 2005) (dismissing retaliation claim where plaintiff failed to show he was

clearly more qualified than the selected candidate). Plaintiff applied for, and was considered for,

two promotions in 2002, but he did not receive those promotions because he was not the best

candidate.

                                    (1)      Assistant Power Director Position

                  Plaintiff applied twice for the position of Assistant Power Director, first on

July 10, 2002, and again in September 2002. Assistant Power Directors work in the PCC,

controlling the energy flow of the entire power system for Metro-North. Affidavit of Darin

D’Ambrosio (“D’Ambrosio Aff.”) ¶ 5. Accordingly, the position involves an enormous level of

expertise, responsibility and trust. Id. Structured interviews for the position were conducted by

a panel consisting of Clifford Hawkins (an African-American), Chief Power Director for the

Harlem/Hudson line; Darin D’Ambrosio, Senior Engineer of the Power Department; and Peter

McManamon, now-retired Chief Power Director for the New Haven line. This panel alone made

the selection decision. Id. ¶ 6. It evaluated each candidate in the areas of education, railroad

(...continued)
in the 2003 and 2004 agency charges, which concern promotion denials and unfair discipline, those claims are not
properly before the Court. See Butts v. City of N.Y. Dep’t of Hous. Pres. & Dev., 990 F.2d 1397, 1402-03 (2d Cir.
1993) (dismissing the majority of plaintiff’s untimely claims because they were not reasonably related to the timely
claims).




                                                         12
service, Power Department service, technical and system knowledge (Power only), utility

knowledge, communication skills, and Metro-North system knowledge (other than Power). Id.

¶¶ 7, 8 & Ex. B thereto. Plaintiff scored consistently lower than the other candidate in all

categories except railroad service and power service. Id. ¶ 11. In the category of technical and

system knowledge, he did not demonstrate knowledge of the update bulletins that provide

essential information regarding new procedures and system information. Id. The panel

concluded that his technical knowledge of the power system was surprisingly inadequate given

his years of service. Id.

               Moreover, as the panel was evaluating the candidates, D’Ambrosio discovered

that Plaintiff had misrepresented his attendance record during the interview. Id. ¶ 12. Plaintiff

told D’Ambrosio that he had not taken any sick days since returning from leave in March 2002.

See Ex. 39. Plaintiff offered this information to resolve an outstanding issue concerning the

number of sick days charged against him. D’Ambrosio Aff. ¶ 12. When D’Ambrosio looked

into the issue, he discovered that Plaintiff had misrepresented the number of sick days he had

taken. Id. To D’Ambrosio, this demonstrated a lack of trustworthiness. Id. ¶ 13. In addition to

evidence of a lack of trustworthiness, Plaintiff’s attendance record was an issue that would have

been examined even if he had not raised it. Id. ¶ 14. Attendance records are routinely examined

in hiring for this position, because regular attendance is of critical importance due to the need to

staff the position around the clock. Id. Any absence necessarily requires another Assistant

Power Director to work overtime. Id. Given his lack of current procedural system knowledge

and his misrepresentations to D’Ambrosio, Plaintiff was not awarded the position. Id. ¶ 15.

When the successful candidate withdrew his application, the panel did not offer the position to

Plaintiff, because it had concluded from a number of factors that he was not a suitable candidate.




                                                 13
Id. ¶ 17. The position was re-posted in September 2002, but the panel did not re-interview him

because it determined that nothing had changed since its initial determination in July. Id. The

panel awarded the position to another candidate who demonstrated the requisite power system

knowledge and had a good attendance record. Id. Neither Plaintiff’s race nor the fact that he had

previously filed discrimination charges against Metro-North was a factor in the panel’s decisions

in July 2002 and in September 2002 to award the position to other more qualified candidates. Id.

¶ 18. Nothing in the circumstances surrounding the decision not to award the position to

Plaintiff in September 2002 gives rise to an inference of racial discrimination. See, e.g., Byrnie,

243 F.3d at 103 (holding that to support an inference of discrimination “a plaintiff's credentials

would have to be so superior to the credentials of the person selected for the job that ‘no

reasonable person, in the exercise of impartial judgment, could have chosen the candidate

selected over the plaintiff for the job in question”) (internal quotation marks omitted); Johnson,

392 F. Supp. 2d at 338 (holding plaintiff failed to show he was clearly more qualified than the

selected candidate such that the choice was clearly pretextual).

                               (2)    Supervisor Power Training/Procedures Position.

               Plaintiff also applied for a Supervisor Power Training/Procedures position, posted

by Pat Marchitto, Manager of Training/Procedures on December 23, 2002. See Ex. 40. While

the Power Department has both electrical and lineman training positions, this position was for

electrical training. Affidavit of Patric Marchitto (“Marchitto Aff.”) ¶ 4. Plaintiff was one of

three candidates interviewed for the position. Id. ¶ 5. Marchitto alone decided to award the

position to another candidate, Jason Wood, who was far better qualified than Plaintiff. Id. ¶ 8.

Wood was working for Metro-North as an electrician, had a college degree and an electrician’s

license, and was in the process of obtaining a master electrician’s license. See id. ¶ 6; see also

Ex. 41. By contrast, Plaintiff was not a licensed electrician, his experience as an electrician was


                                                 14
fifteen years old, and all of his Metro-North experience was as a lineman. See Marchitto Aff.

¶ 6; see also Ex. 42. As part of the selection process, each candidate conducted a mock training

exercise; to Marchitto’s knowledge, Wood was the only one who did independent research for

his presentation. Marchitto Aff. ¶ 7. Plaintiff’s race was not a factor in Marchitto’s decision to

offer the position to the more qualified candidate, and Marchitto was not aware at that time that

Plaintiff had made any claims of discrimination against Metro-North. Id. ¶ 9. Nothing in the

decision to award the position to a better-qualified applicant gives rise to an inference of racial

discrimination against Plaintiff. See, e.g., Byrnie, 243 F.3d at 103; Johnson v. Conn. Dep’t of

Corrections, 392 F. Supp. 2d at 338.

                           b.       Plaintiff Cannot Prove That Metro-North Disciplined Him Because
                                    Of His Race.

                  In challenging Metro-North’s disciplinary decisions, Plaintiff may establish the

fourth element of his prima facie case by showing that he was treated differently from similarly

situated non-African-American employees. Graham v. Long Island R.R., 230 F.3d 34, 40 (2d

Cir. 2000). “To be ‘similarly situated,’ the individuals with whom [Plaintiff] attempts to

compare [him]self must be similarly situated in all material respects.”7 “What constitutes ‘all

material respects’ . . . 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.,

230 F.3d at 40. In determining whether the conduct was of comparable seriousness, courts

consider “the context and circumstances” of both plaintiff’s and the alleged comparator’s


7
  Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (holding plaintiff was not similarly situated
to her coworkers because they had different supervisors and had committed different policy violations) (emphasis
added); see also Edwards v. Metro-North Commuter R.R. Co., No. 3:04cv1430 (D. Conn. 2006) (Ruling on Defs.’
Mot. for Reconsideration [Doc. #61], at 4 (copy attached to Button Aff. as Ex. 43).




                                                         15
conduct, including the respective disciplinary histories of the plaintiff and comparator.8 Plaintiff

claims that Metro-North disqualified him as a Class A lineman in February 2004 and demoted

him from his foreman position in March 2004, both because of his race. Neither of these claims

is supported by the evidence.

                 Following standard procedure, Metro-North temporarily disqualified Plaintiff

from Class A rights because of the February 18th Incident, which resulted in damage to Metro-

North’s signal system and extensive train delays. See supra Section II.B.1, at pp. 5-7. Because

Plaintiff declined the waiver Metro-North offered, he ultimately served a five day suspension for

the February 18th Incident. Ex. 14. Then, Plaintiff was disqualified from his foreman position

for a period of five days pending a pre-trial meeting because of the February 28th Incident, his

second serious safety violation within a ten-day period. See supra Section II.B.1, at pp. 5-7.

Plaintiff ultimately received a twenty-day suspension in connection with the February 28th

Incident, but this suspension was never served. Exs. 16, 73.

                 Plaintiff alleges that certain Caucasian linemen, John Dillon, John Frank, and

Frederick Merkel, committed similar safety violations but were not similarly disciplined.

Plaintiff concedes that he has no personal knowledge of Frank’s or Dillon’s disciplinary records,

the safety violations they allegedly committed, or whether they received any discipline for those




8
  Padilla v. Harris, 285 F. Supp. 2d 263, 270 (D. Conn. 2003) (Arterton, J.) (granting summary judgment where
employee who failed to perform required bed checks submitted no evidence that his coworkers’ conduct was
comparably serious). See also Iuorno v. Dupont Pharm. Co., 129 Fed. Appx. 637, 641 n.6 (2d Cir. 2005)
(unpublished) (affirming summary judgment for defendant employer where plaintiff failed to meet his burden of
establishing that comparators were similarly situated; alleged comparators worked in different departments, had
different supervisors, and committed different procedural violations); Guerrero v. Conn. Dep’t of Children &
Families, 315 F. Supp. 2d 202, 210-11 (D. Conn. 2004) (granting summary judgment where plaintiff failed to show
that alleged comparator was “similarly situated” because plaintiff’s disciplinary record was “far worse”).




                                                      16
alleged violations.9 In fact, they are not similarly situated to Plaintiff, because none of those

alleged comparators committed repeated safety violations or had a disciplinary history similar to

Plaintiff’s. He simply cannot carry his burden of showing, through admissible evidence, that he

was disciplined differently from any similarly situated white employees. See Edwards, Ruling

on Defs.’ Mot. for Reconsideration [Doc. #61]. See also Guerrero, 315 F. Supp. 2d at 210;

Padilla, 285 F. Supp. 2d at 270.

                  Dillon died over twelve years ago, and, despite a diligent search of its records,

Metro-North has found no information regarding any safety violations committed by Dillon or

any disciplinary actions against him. See DiStasio Aff. ¶ 15. The only disciplinary record in

Frank’s file indicates that in 1998 he was charged with improper operation of a railway

maintenance vehicle, see Ex. 44, but that charge was withdrawn when it was determined that

another linemen could have accidentally interfered with the vehicle’s control levers. See

DiStasio Aff. ¶ 16. Merkel testified that he had improperly grounded a live overhead power line,

as Plaintiff had done in January 2004 without disciplinary consequences. Like Plaintiff, Merkel

was not disciplined. See Ex. 45, Merkel Dep. at 37-38.

                  No foreman in Metro-North’s Catenary Department, other than Plaintiff, has ever

committed two serious safety violations within such a short period of time. DiStasio Aff. ¶ 9.

Because Plaintiff cannot show that he was treated differently from any other


9
   See Ex. 5, Norris Dep. Tr. at 229 ll.15-19 (“Q: Do you know if Mr. Frank was disciplined? A: No. Q: You don’t
know whether he was or wasn’t? A: No.”); Id. at 221 ll.14 through 223 ll. 7 (“Q: Did you see Mr. [John] Dillon’s
disciplinary record? A: No. Q: Did you see Mr. Dillon’s disciplinary record either before or after this incident? A:
No. Q: So the only reasons why you believe that Mr. Dillon was never disciplined in connection with this incident
is that he came to work the next day? A: No. . . . Q: What other reason do you have to believe that Mr. Dillon was
never disciplined in connection with this incident? A: Because his brother at that time was the supervisor within our
department, Matt Dillon. Q: And what did – Did Matt Dillon tell [you that] Mr. Dillon was never disciplined? A:
No. Q: Did John Dillon ever tell you that he was never disciplined? A: No. Q: Did anyone ever tell [you that] Mr.
Dillon was never disciplined? A: Yes. Q: Who told you that? A: Chip Baker. Q: And once again, the only
reason why Chip Baker believed that to be the case was because he came to work the next day? . . . A: Yes.”).




                                                         17
non-African-American employee, he cannot establish a prima facie case of race discrimination

based on discipline.

                           c.       Plaintiff Cannot Show That He Was Constructively Discharged.

                  Plaintiff also alleges that Metro-North constructively discharged him on

October 24, 2005. Plaintiff cannot establish a prima facie case of race discrimination based on

that allegation, because he cannot show that he was constructively discharged. “An employee is

constructively discharged when his employer, rather than discharging him directly, intentionally

creates a work atmosphere so intolerable that he is forced to quit involuntarily.” Terry v.

Ashcroft, 336 F.3d 128, 151-52 (2d Cir. 2003). Constructive discharge presents a “‘worst case’

harassment scenario, harassment ratcheted up to the breaking point.” Penn. State Police v.

Suders, 542 U.S. 129, 148 (2004). There are two elements of a constructive discharge claim: (1)

the employer’s intentional conduct; and (2) the intolerable level of the work conditions.10 “A

claim of constructive discharge must be supported by more than the employee’s subjective

opinion that the job conditions have become so intolerable that he or she was forced to resign.”11

“Unfavorable evaluations, criticisms of poor performance, transfers, and demotions, without

more, do not justify an employee resignation. Rather, the adverse working conditions must

generally be ongoing, repetitive, pervasive, and severe.”12 Denials of promotions, without more,


10
   See Petrosino v. Bell Atlantic, 385 F.3d 210, 229 (2d Cir. 2004) (affirming dismissal of plaintiff’s constructive
discharge claim, where there was no evidence that the employer wished the employee to resign her position, and the
plaintiff had not demonstrated that “quitting was the only way out of her . . . dilemma”).
11
  Seery v. Yale-New Haven Hosp., 17 Conn. App. 532, 540, 554 A.2d 757, 761 (Conn. App. Ct. 1989); see also
Zephyr v. Ortho McNeil Pharm., 62 F. Supp. 2d 599 (D. Conn. 1999) (granting summary judgment in favor of
employer where plaintiff failed to present any objective evidence that his working conditions were intolerable).
12
   Wells v. Town of Plainfield, No. CV020068211, 2005 WL 375293 at *2 (Conn. Super. Jan. 11, 2005) (copy
attached to the Button Aff. as Ex. 46) (dismissing plaintiffs’ constructive discharge claims where they presented no
specific evidence that defendants intended to create a hostile work environment or that a reasonable person would
have felt compelled to resign).




                                                         18
do not support a claim of constructive discharge.13 Here, Plaintiff cannot show that Metro-North

intended that he resign or that it made his working conditions intolerable.

                  First, Plaintiff was out on medical leaves of absence for almost a year and a half

before he resigned. His final leave commenced on July 14, 2005 and lasted over three months.

There is no evidence indicating that Metro-North intended that Plaintiff resign. To the contrary,

Metro-North communicated regularly with him in anticipation of his return to work. His

resignation coincided with Metro-North’s efforts to return him to work, including a request that

he submit to a drug screening, required under the CBA for safety-sensitive positions (such as

linemen). See Exs. 48-50; see also Metro-North Operating Procedure 21-012 (VI)(H).14 It is at

best highly ironic that Plaintiff claims a constructive discharge from Metro-North’s attempts to

get him back to work.

                  Second, Plaintiff cannot show that during the seven weeks he did work in the

approximately 18 months before he resigned, his working conditions were intolerable or that he

experienced any conduct that a reasonable person would find intolerable. His subjective

dissatisfaction with his job and his unfounded perception that he was unfairly disciplined are

insufficient to support a constructive discharge claim.15 That he would face unresolved




13
   Colter v. Yale Univ., No. 3:97CV2024 (RNC), 2000 WL 559023 (D. Conn. Mar. 24, 2000) (copy attached to the
Button Aff. as Ex. 47) (granting summary judgment in favor of employer because denial of promotion did not
create intolerable working condition).
14
  In October 2005, Plaintiff was charged with insubordination for refusing to submit to a drug screening test, and
for behaving in a hostile and belligerent manner to the medical technician. See Ex. 34. Shortly thereafter, Plaintiff
resigned. See Ex.25.
15
   Spence v. Maryland Cas. Co., 995 F.2d 1147, 1156 (2d Cir. 1993) (“the fact that an employee develops stress-
related ill health from the demands of his voluntarily undertaken position or from criticisms of his performance, and
as a result determines that health considerations mandate his resignation, does not normally amount to a constructive
discharge by the employer”).




                                                         19
disciplinary charges if he returned to work does not transform his voluntary resignation into a

constructive discharge.16

                 2.       Plaintiff Cannot Prove Metro-North’s Legitimate Non-Discriminatory
                          Reasons For Its Actions Are Pretext For Discrimination.

                 Even if Plaintiff could establish a prima facie case of discrimination, he

nevertheless cannot prove, as a matter of law, that Metro-North’s legitimate non-discriminatory

reasons for its actions are pretextual. “Once the employer has proffered its [legitimate],

nondiscriminatory reason, the employer will be entitled to summary judgment… unless the

plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.”17

Here, Plaintiff cannot cite any evidence that would support a finding that race discrimination was

the real reason for the discipline he received, or for the failure to promote him in 2002. Plaintiff

cannot support any of this claims with any evidence. But his claim that he was not awarded the

Power Director position because of race discrimination is particularly unfounded. Mr. Hawkins,

one of the three decision makers, is African-American. He agreed with the two other decision

makers that Plaintiff was not a suitable candidate. See D’Ambrosio Aff. ¶¶ 10, 16 & Ex. A

thereto (Hawkins’s interview notes). Where a decision maker is in the same protected class as

the plaintiff, courts have been reluctant to find that a defendant’s articulated reasons for the




16
   See, e.g., Carmellino v. District 20 of New York City Dept. of Educ., No. 03 Civ 5942 PKC, 2006 WL 2583019
(S.D.N.Y. Sept. 6, 2006) (copy attached to the Button Aff. Ex. 51) ; Silverman v. New York, 216 F.Supp.2d 108,
115-16 (E.D.N.Y. 2002), aff'd, 64 Fed. Appx. 799 (2d Cir. 2003); Stembridge v. City of N.Y., 88 F.Supp.2d 276,
284-85 (S.D.N.Y.), aff'd, No. 00-7668, 2000 U.S. App. LEXIS 38697 (2d Cir. 2000).
17
   James v. New York Racing Ass’n, 233 F.3d 149, 154 (2d Cir. 2000) (citations omitted); see also Bass v. Nynex, 02
Civ. 5171 (DLC), 2004 U.S. Dist. LEXIS 17378 at * 17-18 (S.D.N.Y. Sept. 1, 2004) (copy attached to the Button
Aff. as Ex.52) (dismissing plaintiff’s complaint when defendant’s legitimate, non-discriminatory reason for
disciplinary action was based on plaintiff’s failure to comply with company policies and objectives.)




                                                        20
employment actions were pretextual.18 Plaintiff may disagree with Metro-North’s reasons, but

he cannot cite any evidence that the decisions were based on prohibited race discrimination, or

that he was treated differently from any non-African-American employees because of his race.

“[A]n employer has discretion even to make a bad business decision . . . so long as that decision

is not motivated by discrimination.”19

         B.       Plaintiff Cannot Succeed On His Retaliation Claim.

                  Count Two of the Complaint alleges that Defendants retaliated against Plaintiff

“on a continuous basis” because Plaintiff had filed two CHRO charges complaining of

discrimination.20

                  To establish a prima facie case of retaliation, a plaintiff must establish that (1) he

was engaged in protected activity, (2) the employer was aware of that activity; (3) he suffered a

materially adverse action; and (4) there was a causal connection between the protected activity

and the adverse action.21 In demonstrating the “protected activity” element, “an employee need

not establish that the conduct [he] opposed was in fact a violation of Title VII,” but he must

show that he had “a good faith, reasonable belief that the underlying employment practice was

18
   See Toliver v. Cmty. Action Comm’n to Help The Economy, Inc., 613 F. Supp. 1070, 1074 (S.D.N.Y.) (holding
inference of racial discrimination was “to say the least, attenuated” where board making the decision was comprised
of 11 members, 6 of whom were African-American), aff’d, 800 F.2d 1128 (2d Cir. 1986).
19
   Scaria v. Rubin, 94 Civ. 333 (Peck, M.J.), No. Civ. 3333 AJP SAS, 1996 WL 389250 at *8 (S.D.N.Y. July 11,
1996), aff’d, 117 F.3d 652 (2d Cir. 1997) (copy attached to the Button Aff. as Ex. 53); see also Byrnie v. Town of
Cromwell, Bd. of Educ. 243 F.3d 93, 103 (2d Cir. 2001) (“Our role is to prevent unlawful hiring practices, not to act
as a ‘super personnel department’ that second guesses employers’ business judgments.”) (quoting Simms v.
Oklahoma ex rel. Dep’t of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir.), cert. denied,
528 U.S. 815 (1999).
20
   Compl., Count Two ¶¶ 39-40. Plaintiff also previously filed administrative charges of discrimination in 1994,
1995, and 1999, and participated in a lawsuit against Metro-North filed in 1994. As discussed infra, at
Section III.B.3, at pp. 26-27, Plaintiff cannot establish any causal connection between those complaints and any
alleged adverse employment actions.
21
  See Burlington Northern & Santa Fe Railway Co. v. White, 126 S. Ct. 2405 (2006); Collins, 305 F.3d at 118;
Peters v. City of Stamford, 3:99-CV-796, 2003 WL 1343265 at *8 (D. Conn. Mar. 17, 2003) (copy attached to the
Button Aff. as Ex. 54).




                                                         21
unlawful.” Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996). The same

three-step burden-shifting analysis that applies to discrimination also applies to retaliation

claims. See Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991). As a matter of law, Plaintiff

cannot establish the first, third or fourth prongs of a retaliation claim, because (1) he cannot

establish that he had an objective basis for bringing a race discrimination claim, (2) he did not

suffer a materially adverse action, and (3) there is no causal connection between the alleged

protected activity and the alleged adverse actions.

                  1.        Plaintiff Did Not Have A Good Faith, Reasonable Belief To Bring
                            Claims Of Race Discrimination.

                  Plaintiff cannot establish that he engaged in protected activity, because he cannot

show that he had a good faith reasonable belief that any of the alleged conduct complained in the

2003 or 2004 CHRO charges was unlawful. There is no evidence whatsoever that those charges

of racially discriminatory treatment were reasonable or brought in good faith.22 Like the

plaintiffs in Galdieri-Ambrosini, Manorahan, and Woods v. Enlarged School District of

Newburgh, Plaintiff had no reasonable basis to believe that he was subjected to discrimination,

because there was no semblance of racial motivation in the decisions not to promote him, to

impose discipline in response to his repeated safety violations, to require him to undergo fitness-

for-duty medical examinations while he was on leave, or in any other conduct about which he

complains. Id.

22
   See Galdieri-Ambrosini v. Nat’l Realty & Dev. Corp., 136 F. 3d 276, 292 (2d Cir. 1998) (dismissing retaliation
claim where plaintiff had no reasonable basis for belief that employer discriminated against her because there was
“no semblance of gender-oriented motivation in the events or conversations to which [plaintiff] testified”);
Manoharon v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590 (2d Cir. 1988) (affirming the
district court’s dismissal of plaintiff’s retaliation claim based on a white candidate’s selection for a faculty position,
where the plaintiff’s belief that he had been subject to race discrimination was not reasonable); Woods v. Enlarged
City School Dist. of Newburgh, No. 04 Civ 9106 (WCC), 2007 WL 431016, at *20 (S.D.N.Y. Feb. 07, 2007) (copy
attached to the Button Aff. as Ex. 55) (dismissing retaliation claim where plaintiff could not show any record
evidence or specific examples of racial discrimination and she could not show that she had a reasonable good-faith
belief that she had been subject to racial discrimination; therefore she had not engaged in protected activity).




                                                            22
               First, Plaintiff had no reasonable basis for claiming that the 2002 promotion

decisions about which he complained in his 2003 charge were racially discriminatory. As

discussed above, both promotions were awarded to candidates who clearly were more qualified.

See supra Section III.A.1.a, at pp. 12-15. Nothing in those decisions gives rise to an inference of

racial discrimination, and Plaintiff could not reasonably have believed otherwise.

               Similarly, Plaintiff had no reasonable basis for claiming that the preliminary

actions taken in response to his serious safety violations in February 2004, the subject of his

2004 charge, were racially discriminatory. Metro-North followed standard procedure when it

disqualified him after the February 18th Incident. Less than ten days later, he committed another

serious safety violation (the February 28th Incident). David DiStasio, Assistant Director of

Metro-North’s Power Department, temporarily disqualified him from his foreman position,

pending a disciplinary trial. Plaintiff filed his CHRO charge a mere two days after he was

offered the thirty-day disqualification, and prior to any formal discipline being imposed. He did

not even let the disciplinary process run its course before he filed a charge alleging that it was

discriminatory. A reasonable employee could not believe prospective discipline for a safety

violation to be unlawful. Plaintiff cannot show any evidence that he was subject to discipline for

discriminatory reasons, nor can he show any retaliatory motive. Because he cannot show that he

had a good faith reasonable belief for filing his 2004 CHRO charge, it cannot constitute

protected activity. Manoharan, 842 F.2d at 593-94.

               2.      Plaintiff Did Not Suffer A Materially Adverse Action.

               Plaintiff also cannot show that he suffered any materially adverse action. In order

to show an adverse action in the retaliation context, “a plaintiff must show that a reasonable

employee would have found the challenged action materially adverse, which . . . means it might

have dissuaded a reasonable worker from making or supporting a charge of discrimination.”


                                                 23
Burlington Northern, 126 S. Ct. at 2415 (internal quotation marks omitted). The Court noted

that “the significance of any given act of retaliation will often depend upon the particular

circumstances. Context matters.” Id. However, “it is important to separate significant from

trivial harms.”23 Here, if Plaintiff suffered any harm at all, it was trivial (or imagined).

                  Although the Complaint contains general allegations that Metro-North retaliated

against Plaintiff, the only conduct specified in Count Two is that Metro-North “repeatedly and

excessively demanded the plaintiff report for numerous medical fitness for duty examinations.”24

That conduct cannot constitute an employment action that would have been “materially adverse

to a reasonable employee.”25 A requirement that an employee comply with standard

employment policies to qualify him to return to work could not possibly dissuade a reasonable

worker from making a charge of discrimination. Metro-North’s standard policies provide that it

may require medical examinations of employees who are taking medical leaves of absence. See

Ex. 49, Metro-North’s Operating Procedure No. 23-001 (providing that employees may be

required to undergo Medical Evaluations if they have “prolonged, excessive, chronic or



23
   Id. (noting that “petty slights, minor annoyances, and simple lack of good manners” are not materially adverse
actions because they will not deter a reasonable person from complaining to the EEOC); see also Evarts v. So. New
England Tel. Co., No. 3:00 CV 1124 WIG, 2006 WL 2864716 (D. Conn. Oct. 2, 2006) (copy attached to the Button
Aff. as Ex. 56) (dismissing plaintiff’s retaliation claim where the alleged conduct – a verbal warning – did not rise to
the level of a materially adverse action).
24
   Compl. Count Two ¶ 41. As with the discrimination claim, the Court should disregard the additional conduct
Plaintiff alleges but as to which he has not exhausted his administrative remedies. See supra note 6. Plaintiff can
also be expected to argue that the failure to promote him in 2002 and the discipline he received in 2004 were
retaliatory. Even these actions cannot, as a matter of law, support Plaintiff’s retaliation claim, because there is no
causal connection between any protected activity and these actions. See infra Section III.B.3, at pp. 26-27.
25
   See Burlington, 126 S. Ct. at 2409; see also Zelnik v. Fashion Institute of Technology, 464 F.3d 217 (2d Cir.
2006) (denial of emeritus standing in an academic setting not an adverse employment action as a matter of law);
O'Dell v. Trans World Entm’t Corp, 153 F. Supp. 2d 378, 396-97 (S.D.N.Y. 2001) (requiring documentation for sick
leave is not an adverse employment action); Nicastro v. Runyon, 60 F.Supp.2d 181 (S.D.N.Y. 1999) (allegations of
excessive scrutiny by supervisors, requiring documentation for sick leave, scrutiny of plaintiff’s wife's sick leave,
unexplained absence of certain documents from Plaintiff’s personnel file, and threatening to investigate medical
fraud do not constitute “adverse employment actions”).




                                                           24
intermittent sick leave” or after unpaid sick leave for more than 30 days). Plaintiff was required

to submit to medical examinations pursuant to Metro-North’s policy, because he had been on

sick leave for more than thirty days and because his sick leave was prolonged and chronic. On

April 12, 2004, Metro-North sent Plaintiff a notice to report for a mandatory medical

examination on April 26, 2004, in accordance with standard policy. See Ex. 20. Plaintiff did not

show up for that appointment or call to cancel. Metro-North sent Plaintiff a second notice on

April 28, 2004, rescheduling the appointment for May 5, 2004. See Ex. 57. Again, Plaintiff did

not show up for that appointment or call to cancel. See Ex. 72.26 Metro-North sent Plaintiff a

third notice on June 8, 2004 rescheduling the appointment for June 24, 2004. See Ex. 58. If

Plaintiff had complied with the first notice, it would not have been necessary for Metro-North to

send him the additional notices.27 The fact that Metro-North followed its standard procedures in

requesting a mandatory medical examination cannot constitute an adverse action for purposes of

a retaliation claim.28

                  Plaintiff also claims that his alleged constructive discharge was an adverse action.

As discussed above, the undisputed facts do not support Plaintiff’s claim that he was

constructively discharged. See Penn. State Police v. Suders, 542 U.S. at 148. See also supra

Section III.A.1.c, at pp. 18-20.

26
   On May 10, 2004, after failing to show up for the second scheduled appointment, Plaintiff was charged with
insubordination. See Ex. 59. A pre-trial meeting was scheduled to discuss the insubordination charge. See Ex. 60.
Plaintiff failed to show up for the pre-trial meeting. A trial on the subordination charge and failure to submit to a
drug test was scheduled for November 15, 2005 but was never held, because Plaintiff resigned his employment
before it took place.
27
   Metro-North also sent Plaintiff notices of medical examinations later in 2004 when he went out on medical leave
again. See Ex. 22. Again Plaintiff ignored the first two notices and failed to show up for the mandatory
appointments, prompting Metro-North to send a third notice. See Ex. 61. As before, had Plaintiff complied with the
first notice, Metro-North would not have needed to issue additional notices.
28
  See, e.g., Gonzalez v. Beth Israel Med. Ctr., 262 F.Supp.2d 342 (S.D.N.Y. 2003) (dismissing retaliation claim
where no reasonable jury could find that [plaintiff’s] discharge was motivated by anything other than her
supervisor’s intent to enforce the tardiness policy).




                                                         25
                 3.       There Is No Causal Connection Between The Claimed Protected
                          Activity And The Alleged Adverse Actions.

                 Plaintiff cannot establish a causal connection between any of his alleged protected

activity and the alleged adverse actions. First, the time gap between the earlier discrimination

charges and the challenged conduct is far too great to warrant an inference of retaliation. The

denials of promotion in 2002 occurred over three years after Plaintiff filed a charge of

discrimination in 1999, and over eight years after he filed a federal lawsuit in 1994. The

discipline Plaintiff received in 2004 occurred nearly one year after Plaintiff filed his 2003

charge.

                 The Second Circuit has held that far shorter delays were too remote to sustain an

inference of retaliation.29 As the Supreme Court observed in Clark County School District v.

Breeden, 532 U.S. 268, 273-74 (2001), “[t]he 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.’”30 The two cases the Court cited for the “very close” proposition,

Richmond v. Oneok, Inc., 120 F.3d 205, 209 (10th Cir. 1997) (three-month period too long), and




29
   See Holt v. KMI-Cont’l, Inc., 95 F.3d 123, 130 (2d Cir. 1996) (no causal connection found between filing of
CHRO charge and termination three months later); Hollander v. American Cynamid Co., 895 F.2d 80 (2d Cir. 1990)
(no causal connection established between filing of administrative charge and adverse employment action three and
a half months later); Simon v. N.Y.C. Bd. of Educ., No. 01-CV-6024, 2006 WL 1210959 (E.D.N.Y. May 2, 2006)
(copy attached to Button Aff. as Ex. 62), (holding that four-month lapse between filing of EEOC charge and adverse
employment action was too long to establish causal connection).
30
   Id. (quoting Neal v. Ferguson Constr. Co., 237 F.3d 1248, 1253 (10th Cir. 2001) (holding that because plaintiff
presented other evidence of causation, no need to decide whether a gap of two months and three weeks is close
enough, but noting that it had held a three-month period to be too long).




                                                        26
Hughes v. Derwinski, 967 F.3d 1168, 1174-75 (2d Cir. 1992) (four-month period too long), hold

periods far shorter than the one year at issue here to be too long.31

                 Second, Plaintiff cannot show that the discipline for the February 18th Incident

and the February 28th Incident was retaliatory. The disciplinary process in connection with

those incidents had already begun when Plaintiff filed his March 2004 CHRO charge. An

employee cannot insulate himself from discipline by filing a charge of retaliation once the

disciplinary process has begun.32

                 Finally, Plaintiff cannot show that the legitimate, non-retaliatory reasons Metro-

North has established for the challenged conduct are pretext for retaliation. See supra Section

III.A, at pp. 10-21. As demonstrated above, Plaintiff has no admissible evidence that any

similarly situated comparators were treated any better. To the contrary, the evidence establishes

that Plaintiff was treated fairly, and that any adverse employment actions were the result of

Plaintiff’s own conduct.

        C.       Plaintiff’s Section 1981 Claim Must Be Dismissed.

                 The third count of the Complaint asserts a claim of race discrimination under

42 U.S.C. § 1981. To establish a claim under § 1981, a plaintiff must show: (1) that he is a

member of a racial minority; (2) that the defendant intended to discriminate against him on the

basis of his race; and (3) that the defendant discriminated concerning one of the statute’s

enumerated activities. See Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir.1999), cert.


31
  See also, e.g., Shah v. Consol. Edison Corp., 04 Civ. 2880 (JSR), 2005 U.S. Dist. LEXIS 4012 at *8 (S.D.N.Y.
Mar. 14, 2005), aff’d, 175 Fed. Appx. 436 (2d Cir. 2006) (copy attached to the Button Aff. as Ex. 63) (gap of six
months was “far too long”).
32
   Alston v. New York City Transit Auth., No. 97 Civ. 1080 (RWS), 1999 WL 540442 (S.D.N.Y. July 26, 1999)
(copy attached to the Button Aff. as Ex. 64) (“That plaintiff may have engaged in a protected activity does not
insulate him from being disciplined or discharged for his misconduct.”); see also Valentine v. Standard & Poor’s,
No. 97 Civ. 0005 (SS), 1999 WL 436772 (S.D.N.Y. June 24, 1999) (copy attached to the Button Aff. as Ex. 65).




                                                        27
denied, 534 U.S. 816 (2001). The burden-shifting analysis developed in Title VII disparate

treatment cases applies to claims brought under § 1981. See, e.g., Lipsett v. Univ. of P.R., 864

F.2d 881, 896 (1st Cir. 1988); Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581, 587

(5th Cir. 1998). Therefore, for all of the reasons set forth above, see supra Sections III.A and

III.B, at pp. 10-27, the third count should be dismissed. Furthermore, the statute of limitations

applicable to § 1981 claims brought in the State of Connecticut is three years, and thus the Court

does not have jurisdiction to consider Plaintiff’s claims regarding any conduct that occurred prior

to September 15, 2003.33

                    Plaintiff also alleges that Cleary refused to provide one of his linemen with a fire-

retardant jacket in December 2002. First, this claim is time-barred.34 Second, Plaintiff does not

have standing to bring a claim on behalf of his linemen. Any claim based on a third party not

being given a jacket is too remote and indirect to confer Article III standing on Plaintiff.35

Moreover, even if the Court were to consider this conduct, Plaintiff cannot provide any evidence

that the decision was based on racial animus or retaliation, in violation of § 1981. Plaintiff

cannot show that any non-African-American linemen were treated better by being given fire-

retardant jackets during the relevant time, because during that period, no jackets were available

33
   The § 1981 claim was first asserted on September 15, 2006, in the Second Amended Complaint. Accordingly,
any conduct that occurred prior to September 15, 2003 is time-barred and may not considered by the Court in
support of Plaintiff’s § 1981 claim. See Timmons v. City of Hartford, 283 F.Supp.2d 712, 716 (D. Conn. 2003)
(dismissing § 1981 claim; applying the three-year statute of limitations applicable to personal injury actions) (citing
Goodman v. Lukens Steel Co., 482 U.S. 656, 661-62 (1987)); Hall v. So. Cent. Conn. Reg’l Water Auth., 28
F.Supp.2d 76 (D. Conn. 1998), aff’d, 201 F.3d 431 (2d Cir.1999).
34
     Plaintiff last complained about the lack of a fire retardant jacket for his lineman on March 7, 2003. See Ex. 66.
35
   See, e.g., Holmes v. Securities Investor Protection Corp., 503 U.S. 258, 268-69 (1992) (holding that a plaintiff
who complained about harm to a third person was generally said to “stand at too remote a distance to recover”);
Warth v. Seldin, 422 U.S. 490, 498-99 (1975) (holding a plaintiff has Article III standing to assert a claim only when
the plaintiff himself has suffered a threatened or actual injury; “a plaintiff generally must assert his own legal rights
and interests, and cannot rest his claim to relief on the legal rights or interests of third parties”); Kern v. City of
Rochester, 93 F.3d 38 (2d Cir. 1996) (affirming dismissal of retaliation claim where plaintiff had improperly based
her retaliation claim on the alleged violation of another employee’s civil rights), cert. denied, 520 U.S. 1155 (1997).




                                                            28
and none were distributed to any lineman of any color. Marchitto Aff. ¶ 10. Thus, the Court

should dismiss the § 1981 claims against the individual defendants.

       D.      Plaintiff Cannot Succeed On His Claim For Intentional Infliction Of
               Emotional Distress.

               To recover for intentional infliction of emotional distress (“IIED”), a plaintiff

must plead and prove, “(1) that the actor intended to inflict emotional distress or that he knew or

should have known that emotional distress was a likely result of his conduct; (2) that the conduct

was extreme and outrageous; (3) that the defendant’s conduct was the cause of plaintiff’s

distress; and (4) that the emotional distress sustained by plaintiff was severe.” Appleton v. Board

of Educ., 254 Conn. 205, 210, 757 A.2d 1059, 1062 (2000). It is for the court to determine in the

first instance whether alleged conduct of a defendant may, as a matter of law, be found to satisfy

the elements of an IIED claim. Appleton, 254 Conn. at 210; Ancona v. Manafort Bros., Inc., 56

Conn. App. 701, 712, 746 A.2d 184 (2000). To be extreme and outrageous, Defendants’ conduct

must exceed “all bounds usually tolerated by decent society.” Appleton, 254 Conn. at 210, 757

A.2d at 1062 (internal quotations omitted). In fact:

               [L]iability has been found only where the conduct has been so outrageous
               in character, and so extreme in degree, as to go beyond all possible bounds
               of decency, and to be regarded as atrocious, and utterly intolerable in a
               civilized community. Generally, the case is one in which the recitation of
               the facts to an average member of the community would arouse his
               resentment against the actor, and lead him to exclaim, ‘Outrageous!’

Appleton, 254 Conn. at 210-211, 757 A.2d at 1062 (quoting Restatement (Second) Of Torts § 46

cmt. d, 73 (1965)). See also Harhay v. Blanchette, 160 F. Supp. 2d 306, 315 (D. Conn. 2001)

(termination of employee, even when accompanied by other aggravating factors, does not itself

give rise to a claim for IIED), aff’d in part and rev’d in part on other grounds, 323 F.3d 206 (2d

Cir. 2003). Furthermore,




                                                29
                 In the employment context, it is the employer’s conduct, not the motive
                 behind the conduct, that must be extreme or outrageous. An employer’s
                 adverse yet routine employment action, even if improperly motivated,
                 does not constitute extreme and outrageous behavior when the employer
                 does not conduct that action in an egregious and oppressive manner.

Miner v. Town of Cheshire, 126 F. Supp. 2d 184, 195 (D. Conn. 2000).

                 The Complaint is unclear as to precisely what conduct Plaintiff alleges was done

in an “egregious and oppressive manner.” However, much of the conduct alleged in the

Complaint is time-barred. The statute of limitations for tort actions under Connecticut law is

three years. See Conn. Gen. Stat. ¶ 52-577. Plaintiff first alleged a claim for IIED in his

Complaint filed on March 21, 2006, so any claim involving conduct prior to March 21, 2003 is

barred by the statute of limitations.36 Therefore, Plaintiff’s allegations regarding the 2002

bumping incident, the 2002 denials of promotion, the 2002 failure to provide a fire-retardant

jacket to another lineman, and the 2002 elimination of the Class A lineman position in Plaintiff’s

gang all are barred by the statute of limitations.

                 The only remaining conduct that Plaintiff alleges in support of his IIED claim are

the notices of mandatory medical examinations and the imposition of discipline for his two

serious safety violations. Plaintiff cannot base an intentional tort claim on that conduct because

his claim is pre-empted by the Railway Labor Act, and because, even if it is not pre-empted,

none of those actions approaches the high standard necessary to establish an IIED claim.

Appleton, 254 Conn. at 210.




36
   Cleary was not added as a Defendant in this Action until August 3, 2006, and so any conduct that occurred prior
to August 3, 2003 is time-barred in connection with claims against Cleary.




                                                        30
                  1.       The Railway Labor Act Preempts Plaintiff’s Tort Claims.

                  To the extent a claim requires the Court to interpret the terms of the CBA, that

claim is pre-empted by the Railway Labor Act (“RLA”), 45 U.S.C. § 151 et seq.37 The question

whether Metro-North’s interpretation of the CBA to allow the conduct Plaintiff characterizes as

“outrageous” necessarily requires an interpretation of the CBA itself.38 An evaluation of the

conduct on which Plaintiff bases his intentional tort claim would require the Court to interpret

the explicit or implicit provisions of the CBA.39

                  First, Plaintiff alleges that Metro-North acted in an egregious and oppressive

manner when Cleary disqualified him as a Class A lineman following his serious safety violation

on February 18, 2004, and when DiStasio disqualified him from the position of foreman in

March 2004 pending a disciplinary trial. Metro-North is authorized by the CBA to impose

discipline on its union employees who commit safety violations. Ex. 2, CBA at 32. The CBA



37
   See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 252 (1994); Kellman v. Yale-New Haven Hosp., 64 F. Supp.
2d 35, 36-37 (D. Conn. 1999) (dismissing intentional infliction of emotional distress claim as pre-empted by the
LMRA, because resolving the claim would “necessitate an examination of the CBA” to determine whether the
employer properly imposed discipline); Allis-Chalmers v. Lueck, 471 U.S. 202 (1985) (where resolution of state law
claim is substantially dependent on analysis of the terms of a CBA, the claim is preempted by the LMRA).
38
   See, e.g., Saridakis v. United Airlines, Inc., 166 F. 3d. 1272, 1278 (9th Cir. 1999) (RLA); Fry v. Airline Pilots
Ass'n, Intern., 88 F.3d 831, 842 (10th Cir. 1996) (RLA); Bartholomew v. AGL Resources, Inc., 361 F.3d 1333, 1338-
40 (11th Cir. 2004) (LMRA); Mattis v. Massman, 355 F.3d 902, 906-08 (6th Cir. 2004) (LMRA); St. John v. Int’l
Ass’n of Machinists, 139 F.3d 1214, 1219 (8th Cir. 1998) (LMRA); Flibotte v. Pennsylvania Truck Lines, Inc., 131
F.3d 21, 26 (1st Cir. 1997), cert. denied, 523 U.S. 1123 (1998) (LMRA); Smith v. Houston Oilers, Inc., 87 F.3d
717, 724 (5th Cir.), cert. denied, 519 U. S. 1008 (1996) (LMRA); Dittman v. General Motors Corp. Delco Chassis
Div., 941 F. Supp. 284 (D. Conn. 1996) (LMRA); Ellis v. Lloyd, 838 F. Supp. 704, 707-08 (D. Conn. 1991)
(LMRA).
39
   See Douglas v. Am. Info. Techs. Corp., 877 F.2d 565 (7th Cir. 1989) (affirming district court’s dismissal of
intentional infliction of emotional distress claim). In Douglas, the Seventh Circuit held that the claim was
preempted by the LMRA because the court would be required to interpret the terms of the CBA in order to
determine whether the employer’s administration of discipline was improper. Id. at 573-74. The court explained
that “interpretation” of the CBA entailed more than looking at the words of the contract; it included consideration of
the “employer’s ‘course and practice,” i.e., the “industrial common law—the practices of the industry and the shop.”
Id. at 573. Therefore, “resolution of a claim based on a right allegedly arising from the ‘course and practice’ of the
[employer] necessarily requires an interpretation of the collective bargaining agreement in light of the alleged
‘course and practice’.” Id. at 573 (quoting Leu v. Norfolk & W. Ry., 820 F.2d 825 (7th Cir. 1987)).




                                                         31
sets forth the procedures to be used in any disciplinary proceedings. Id. at 32-35. Plaintiff

committed three safety violations within a two-month period, and was charged with and found

guilty of having committed two. (He was not charged with or disciplined for the January 2004

grounding incident.) Plaintiff’s claim essentially asks the Court to determine that Metro-North

acted improperly under the CBA, including Metro-North’s disciplinary policies and practices

grounded in the CBA. This the Court cannot do, because it would require the Court to interpret

the explicit or implicit terms of the CBA.40 Thus, the claim is pre-empted under the RLA, and

should be dismissed.

                  Plaintiff also alleges that Metro-North acted in an egregious and oppressive

manner when it sent him letters to schedule disciplinary trials and to schedule mandatory medical

examinations.41 The CBA requires Metro-North to send notices of disciplinary trials when an

employee has committed a safety violation, see Ex. 2, CBA at 32, and Metro-North’s policies

permit it to request employees who have taken medical leave to undergo medical examinations

upon request to determine when an employee may be eligible to return to work. See Ex. 49.

Because determining whether the notices were sent for improper reasons would require the Court

to interpret the CBA, those claims are pre-empted by the RLA.42 Thus, Plaintiff’s claim based

on the issuance of notices is pre-empted and must be dismissed.


40
   See Kellman v. Yale-New Haven Hosp., 64 F. Supp. 2d 35, 36-37 (D. Conn. 1999); Douglas v. Am. Info. Techs.
Corp., 877 F.2d at 573; Anderson v. Coca Cola Bottling Co., 772 F. Supp. 77, 82 (D. Conn. 1991) (dismissing IIED
claim as preempted because it was based on alleged harassment which consisted of the issuance of three warnings,
where warnings were required by the CBA).
41
   Metro-North sent Plaintiff fourteen (14) notices rescheduling the two pending disciplinary trials and six (6)
requests for medical examinations during Plaintiff’s three lengthy leaves of absence (from March 7, 2004 through
October 12, 2004; from October 21, 2004 through June 1, 2005; and from July 14, 2005 until he resigned his
employment (while still out on leave) on October 24, 2005). See Exs. 20, 22, 24, 27, 29, 30, 31, 34, 57, 58, 61 and
67.
42
  See Calvert v. Trans World Airlines, Inc., 959 F.2d 698, 700 (8th Cir. 1992) (holding that plaintiff’s tort claim
against his employer-airline premised on allegations that his employer required him to submit to medical testing for
                                                                                                     (continued...)


                                                         32
                  2.       None of Metro-North’s Actions Were Outrageous.

                  Even if the claim is not pre-empted, none of the alleged conduct was outrageous,

egregious or oppressive. Plaintiff must prove that Metro-North’s conduct, not the motive behind

it, was extreme or outrageous to support an IIED claim. See, e.g., Huff v. West Haven Board of

Educ., 10 F.Supp.2d 117, 123 (D. Conn. 1998). “An employer’s adverse yet routine employment

action, even if improperly motivated, does not constitute extreme and outrageous behavior when

the employer does not conduct that action in an egregious and oppressive manner.”43 As a

matter of law, it can not be considered outrageous for an employer to insist on its lawful rights

under the CBA.44 The even-handed application of Metro-North’s disciplinary rules in response

to Plaintiff’s serious violations of Metro-North’s safety rules cannot establish IIED as a matter of




(...continued)
improper reasons arose out of the collective bargaining agreement and, therefore, the action was pre-empted by the
RLA); Bielicke v. Terminal R.R. Ass’n, 30 F.3d 877, 878 (7th Cir. 1994) (holding that a claim was pre-empted
because the court could not determine whether the railroad employer conducted investigations for improper
purposes without interpreting the collective bargaining agreement); Culp v. United Pac. R.R. Co., 200 F. Supp. 2d
1099, 1101-02 (E.D. Mo. 2001) (holding that determining whether the railroad employer properly requested fitness
for duty medical examinations and legitimately instituted disciplinary proceedings would require the Court to
interpret the CBA, and therefore the claim was pre-empted).
43
   See Miner v. Town of Cheshire, 126 F. Supp. 2d 184, 195 (D. Conn. 2000); see also Hill v. Pinkerton Sec. &
Investigation Servs., Inc., 977 F. Supp. 148, 160 (D. Conn. 1997) (dismissing IIED claim where plaintiff alleged
employer disciplined, reprimanded and transferred her).
44
   See Restatement (Second) of Torts § 46 cmt. g (“The actor is never liable [for intentional infliction of emotional
distress] where he has done no more than to insist upon his legal rights in a permissible way, even though he is well
aware that such insistence is certain to cause emotional distress.”); see also Johnson v. Merrell Dow
Pharmaceuticals, Inc., 965 F.2d 31, 34 (5th Cir. 1992) (dismissing IIED claim where employer was within its rights
to “supervise, review, criticize, demote, transfer and discipline” as well as terminate employees ); Duse v. Int’l Bus.
Machines Corp., 252 F.3d 151, 163 (2d Cir. 2001) (dismissing IIED claim where former employer’s filing of form
reporting amount of settlement with former employee to IRS was either required by law or business necessity, and
thus could not be deemed to be extreme and outrageous behavior); Petyan v. Ellis, 200 Conn. 243, 254-55, 510 A.2d
1337, 1342-43 (Conn. 1986), superseded by statute on other grounds (dismissing IIED claim where defendant had
an absolute privilege to state the reasons for the termination of plaintiff’s employment in the “fact-finding
supplement” solicited by the employment security division, she was exercising a legal right in a permissible
fashion).




                                                          33
law.45 Plaintiff cannot show any evidence that the discipline imposed for the February 18th

Incident and the February 28th Incident was done in a manner that was outrageous, egregious or

oppressive. Furthermore, Metro-North was entitled to communicate with Plaintiff during his

leave. None of its conduct in connection with the issuance of the mandatory notices was done in

an egregious or oppressive manner.

                 In addition, Plaintiff alleges that Metro-North acted in an egregious and

oppressive manner when it required him and his gang to work in the rain in April 2003 on a non-

emergency job. As Supervisor Anderson testified, Metro-North’s linemen and foremen are

required, when necessary, to work in inclement weather to maintain and repair the high voltage

lines that power the railroad system. See Anderson Aff. ¶ 12. The repair job Anderson assigned

to Plaintiff and his gang on April 11, 2003 was necessary and had to be performed during the

evening hours, even though it was raining, in order to avoid delays in service during the

following morning’s peak commuting time. Id. ¶¶ 13, 15. Although working in the rain may

certainly be unpleasant, it is a required part of a lineman’s and foreman’s job. Id. ¶ 15.

Assignment of repair and maintenance jobs are primarily based on location, i.e., the nearest gang

will be assigned to a particular task. Id. ¶ 13. According to Anderson, Plaintiff’s gang was the

closest gang to the area where the repair was needed on April 11, 2003. Id. Anderson did not

consider Plaintiff’s race in deciding to assign the repair job to him and his gang, and Anderson

had no knowledge that Plaintiff had previously filed complaints alleging race discrimination. Id.

¶ 14. Furthermore, Plaintiff has not alleged that any of Anderson’s conduct in assigning the




45
   See, e.g., White v. Martin, 23 F.Supp.2d 203, 208 (D. Conn. 1998), aff'd , 198 F.3d 235 (2d Cir.1999) (employer’s
actions, including discipline, denial of a promotion, alleged discrimination and harassment based on plaintiff's
gender not extreme or outrageous).




                                                        34
required task was done in an egregious or oppressive manner. This Court has repeatedly

dismissed IIED claims alleging far more outrageous conduct than that at issue here.46

                  Therefore, for all the reasons set forth above, the Court should dismiss the IIED

claims.




46
   See Louis v. Latex Int’l, No. 3:06-cv-00719 (WWE), 2007 WL 274529 (D. Conn. Jan. 29, 2007) (copy attached to
the Button Aff. as Ex. 68) (dismissing IIED claim where plaintiff alleged defendant had subjected him to public
ridicule, given him bad reviews, placed him on a performance improvement plan, and made age-related remarks);
Jamilik v. Yale Univ., No. 3:06 CV 0566 (PCD), 2007 WL 214607 (D. Conn. Jan. 25, 2007) (copy attached to the
Button Aff. as Ex. 69) (dismissing IIED claim where plaintiff alleged she had been excluded from work and social
activities, wrongfully disciplined and stripped of her job duties because of her sex); Harhay v. Blanchette, 160 F.
Supp. 2d 306, 315 (D. Conn. 2001) (termination of employee, even when accompanied by other aggravating factors,
does not itself give rise to IIED claim), aff’d in part and rev’d in part on other grounds, 323 F.3d 206 (2d Cir.
2003); DeLeon v. Little, 981 F.Supp. 728 (D. Conn. 1997) (allegations that supervisor ordered plaintiff to purchase
drugs, stand guard while supervisor ingested drugs and repeatedly called and threatened plaintiff were insufficient to
support IIED claim); Williams v. Perry, 960 F. Supp. 534, 542 (D. Conn. 1996) (conduct not sufficiently outrageous
to support IIED claim where plaintiff was subjected to racist comments regarding her inter-racial marriage, told she
would never get anywhere, because she was married to an African-American, and given harsher discipline than male
co-workers). See also Eden Park Mgmt., Inc. v. Schrull, No. LLICV065000731S, 2007 WL 706583 (Conn. Super.
Ct. Feb. 14, 2007) (copy attached to the Button Aff. as Ex. 70) (granting motion to strike because “cancellation and
rescheduling of” appointments with a neurologist is insufficient to support IIED claim); Dichello v. Marlin Firearms
Co., No. CV06500296S, 2007 WL 429474 (Conn. Super. Ct. Jan. 22, 2007) (copy attached to the Button Aff. as
Ex. 71) (inaction in response to complaints of harassment insufficient to support IIED claim)




                                                         35
IV.    CONCLUSION

              For the foregoing reasons, Defendants respectfully request that the Court grant

Defendants’ Motion for Summary Judgment, dismiss Plaintiff’s claims with prejudice in their

entirety, and order judgment entered in favor of Defendants Metro-North Commuter Railroad

Company, James Gillies, and Joseph Cleary.

                                    Respectfully Submitted,
                                    By:       /s/
                                          Kenneth W. Gage (ct 12965)
                                          Christine Button (ct 26268)
                                          Jenny L. Stewart (ct 26258)
                                          PAUL, HASTINGS, JANOFSKY & WALKER LLP
                                          1055 WASHINGTON BOULEVARD
                                          STAMFORD, CT 06901
                                          (203) 961-7400 (PHONE)
                                          (203) 359-3031 (FAX)
                                          kengage@paulhastings.com
                                          christinebutton@paulhastings.com
                                          jennystewart@paulhastings.com

                                             Counsel for Defendants
                                             METRO-NORTH COMMUTER RAILROAD
                                             COMPANY, JAMES J. GILLIES, and JOSEPH
                                             CLEARY




                                              36
                                 CERTIFICATE OF SERVICE

                 I hereby certify that on March 30, 2007, a copy of the foregoing Defendants’

Memorandum of Law in Support of their Motion for Summary Judgment was filed electronically

and served by mail on anyone unable to accept electronic filing. Notice of this filing will be sent

by e-mail to all parties by operation of the court’s electronic filing system or by mail to anyone

unable to accept electronic filing as indicated on the Notice of Electronic Filing. Parties may

access this filing through the court’s CM/ECF System.


                                              _/s/ Jenny L. Stewart__________________
                                              Jenny L. Stewart (ct26258)
                                              Paul, Hastings, Janofsky & Walker LLP
                                              1055 Washington Boulevard
                                              Stamford, CT 06901
                                              Phone: (203) 961-7400
                                              Fax: (203) 359-3031
                                              E-mail: jennystewart@paulhastings.com


LEGAL_US_E # 73636634.12




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