Opinion
01 Civ. 6433 (NRB)
January 31, 2003
Sheri Hatton, The Law Offices of Sheri Hatton, New York, NY, Counsel for Plaintiff
Jennifer Hein, Landman Corsi Ballaine Ford P.C., New York, NY, Counsel for Defendant
OPINION AND ORDER
Carlton Gambrell was fired by the National Railroad Passenger Corporation ("Amtrak"), after a disciplinary hearing officer found that, during a dispute with another worker, he was violent in contravention of workplace rules. He sued claiming discrimination and retaliation under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621-634. Amtrak has moved for summary judgment on both claims. For the reasons stated herein, we grant the motion.
I. Background
Unless otherwise stated, the facts herein are drawn from the parties' submissions in connection with this motion, including the Defendant's Statement of Material Facts Pursuant to Local Rule 56.1 ("Def. Rule 56.1"), Defendant's Memorandum of Law in Support of Motion for Summary Judgment ("Def. Brief"), Plaintiff's Rule 56.1 Statement ("Pl. Rule 56. 1") and Plaintiff's Memorandum of Law in Opposition to Summary Judgment ("Pl. Brief").
On July 10, 2000, fifty-six-year-old Carlton Gambrell was performing his duties as a station operator in Pennsylvania Station. Those duties included the receipt and distribution of "Form D's," which contain information for conductors and engineers concerning their departing trains. Conductors can retrieve their Form D's no more than 40 minutes prior to the train's scheduled departure time. At about 3:55 p.m. and again at about 4:10 p.m., Amtrak Conductor Joseph Pendleton approached Gambrell and asked for the Form D for a train departing Penn Station at 5:00 p.m. Both times, Gambrell told Pendleton he was too early to pick up the form, and refused to provide it. The second time, a dispute. ensued. When Gambrell said, "Calm down, son," Pendleton shot back, "You're not my father."
At this point, according to Gambrell, Pendleton "drew back and took a swing" at Gambrell. Mar. 4, 2002 Gambrell Dep. (Def. Exh. C) at 52. A counter separated Gambrell and Pendleton, and Gambrell left his workstation, went through an adjoining office cubicle, and through a door into the area where Pendleton was standing. While heading toward the door, Gambrell and another Amtrak employee, Thomas Szachacz, a product manager, made physical contact, though who initiated the contact, and the extent of it, are in dispute. There is also dispute as to whether there was physical contact between Gambrell and two other individuals, Marjorie Siegel, a service manager, and Judith Gay, a product line supervisor. Upon emerging through the door, Gambrell was physically restrained by another Amtrak employee, Keith Greene. Greene soon released Gambrell, who went back to his work area.
A product manager for Amtrak is a manager who works mainly on trains and supervises train crews. Szachacz Dep. (Pl. Exh. 8) at 6.
Gambrell was taken out of service a few hours later. He was charged with violations of Amtrak's Employee Conduct Code and Standards of Excellence, which bar conduct that interferes with the performance of workers' duties, conduct that discredits Amtrak, conduct that compromises safety, and fighting. On August 10, 2000, at the conclusion of Gambrell's administrative hearing, the hearing officer found the charges against him proven. The next day, Gambrell was terminated by Howard Carter, the Assistant General Manager of the Metropolitan Division, the division that included Penn Station. Gambrell's appeal to Amtrak's Director of Labor Relations was denied. Gambrell also appealed to the Special Board of Adjustment No. 973, a separate and independent governmental body from Amtrak, which, in a ruling dated July 5, 2001, denied his appeal on liability grounds, stated "that [Amtrak] had a proper basis to find [Gambrell] guilty of the charges," but noted that "there is no record before the Board of any prior discipline," and concluded that, "under all of the circumstances, we find in this instance that time out of service is sufficient discipline." Def. Exh. D.11 at 2. Gambrell returned to work on August 17, 2001 and is currently employed by Amtrak.
NORAC General Rule D of Amtrak's Employee Conduct Code reads:
Employees must devote themselves exclusively to the Company's service while on duty. They must render every assistance in their power in carrying out the rules and special instructions, and promptly report any violation to the proper official. To remain in service, employees must refrain from conduct that adversely affects the performance of their duties, other employees, or the public. Employees must also refrain from conduct that discredits the Company. Any acts of insubordination, hostility or willful disregard of the Company's interest are prohibited.
The portion of Amtrak's Standards of Excellence entitled "Professional and Personal Conduct" reads:
Teamwork — Being polite to each other is one of the basics of teamwork, so it is important that we are all considerate and respectful of each other. Part of teamwork is properly performing your duties. Another part is following instructions. Therefore, you must comply with all company and departmental policies, procedures and rules as well as all instructions, directions and orders from supervisors and managers. . . . Conduct — On the Amtrak team, there is no place for activities or behaviors that compromise the safety, satisfaction and well-being of our customers, the public or our fellow employees. Therefore boisterous conduct such as fighting, rudeness, assault, intimidation, horseplay and using profane or vulgar language is unacceptable. It is important to remain calm and be courteous to all customers, even those who may be difficult at times.
The Board was apparently not made aware that Gambrell had been fired in 1980 for rail pass abuse, reinstated six months later through the union grievance process, fired in 1992 for insubordination, and again reinstated through the grievance process.
The employment status of both Gambrell and Pendleton is relevant to the disposition of this motion. Gambrell was a station operator in Penn Station in New York and a member of the Transportation Communications International Union, while Pendleton was a conductor based out of Washington, D.C. and a member of the United Transportation Union. Working primarily in different locations, they reported to different supervisors.
Also relevant are certain circumstances of the investigation into Gambrell's conduct. During the investigation, Deborah Johnson, the Superintendent for the New York crew base, asked Judith Gay, a subordinate employee, to "clarify" a written statement, and in response, Gay wrote out a new statement that was slightly different from her first. Gay Dep. (Pl. Exh. 10) at 25-28; Johnson Dep. (Pl. Exh. 4) at 22-24. Gay's first statement had Pendleton's arms "swinging," whereas her second describes his arms as "waving." Pl. Exh. 5. Johnson said that she was instructed by her own supervisor, Don Herman, to tell Gay to clarify her statement. Aug. 1, 2000 Hr'g Tr. ("Hr'g Tr.") (Def. Exh. D.6) at 149. At the hearing, the original Gay statement was entered into the record, and Gay explained that she had prepared a second statement, adding that "[t]here seemed to be some question on my original." Id. at 84. Though she offered the second statement to be entered into the record as well, the hearing officer declined. Id. at 85. At the hearing, Gay testified that Pendleton was "raising" his arms and "waving" his arms.Id. at 87, 94. There is also evidence that Johnson asked Keith Greene to "clarify some stuff" in his statement, though there is no evidence that his written statement was actually changed. Id. at 146.
A video camera recorded a portion of the July 10, 2000 incident. William Chaplik, an Amtrak supervisor who investigated Gambrell's conduct before the hearing, viewed this videotape, and stated that it showed Gambrell coming through the doorway and being restrained by Greene. Chaplik Dep. (Attach, to Jan. 8, 2003 Letter of Pl.) at 56-57. Gambrell was never offered the opportunity to see this videotape, and it was apparently not entered into the record at his hearing.
Finally, the specific findings of the hearing officer, Michael O'Connell, and some of the evidence relating to those findings deserve mention. O'Connell concluded that Gambrell "moved/shoved" two other Amtrak employees, Judith Gay and Marjorie Siegel, and "shoved" Szachacz "with significant force to propel him 6 to 8 feet into a wall." O'Connell Letter dated August 10, 2000 (Def. Exh. D.7). Whether Gambrell moved or shoved any of these people, however, is in dispute. Gay testified specifically at the hearing that Gambrell was not physically violent toward her. Hr'g Tr. (Def. Exh. D.6) at 99. In her testimony at the hearing, Siegel described Gambrell as having "pushed" her and also as having "made a little shoving gesture." Id. at 45-46. In her deposition, she initially stated that he "sort of pushed me aside," but later stated that Gambrell did not touch her, and instead only made a "gesture." Siegel Dep. (Pl. Exh. 3) at 16, 50. Szachacz testified at the hearing that he placed himself between Gambrell and the door, at which point Gambrell made contact with him forcefully enough to turn him away from Gambrell. Hr'g Tr. (Def. Exh. D.6) at 64. Szachacz said he then received a shove from behind that propelled him "six or eight feet away." Id. at 63. Gambrell disputes this, saying that he felt Szachacz grab him from behind as he went through the door, but that Gambrell proceeded out the door. Mar. 20, 2002 Gambrell Dep. (Def. Exh C) at 13-.
In her deposition, Siegel stated: "I don't know if he touched, you know, he gently pushed, I can't even say it's a push, he made a hand gesture, you know, which means, you know, when someone wants to get by you so I moved." Siegel Dep. (Pl. Exh. 3) at 17. Later in the deposition, when Gambrell's counsel asked her to confirm that "he never touched you, is that correct?", Siegel replied, "Right, he made a gesture like I told you." Id. at 50.
Siegel confirmed at the hearing that she saw Gambrell push Szachacz in a way that was "a little more forceful" than the action Gambrell took toward Siegel. Hr'g Tr. (Def. Exh. D.6) at 46.
On November 6, 2000, Gambrell filed a Complaint with the alleging discrimination arising out of the events described above. Def. Exh. D.12. The EEOC complaint does not allege retaliation. Id. The EEOC dismissed the complaint, and Gambrell commenced this suit on July 17, 2001.
II. Discussion
A. Summary Judgment Standard
Summary judgment is properly granted "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the 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). The Federal Rules of Civil Procedure mandate the entry of summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In reviewing the record, we must assess "the evidence in the light most favorable to the party opposing the motion, and resolve ambiguities and draw reasonable inferences against the moving party." Frito-Lay, Inc. v. LTV Steel Co. (In re Chateaugay Corp.), 10 F.3d 944, 957 (2d Cir. 1993). In order to defeat such a motion, the non-moving party must affirmatively set forth facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). An issue is "genuine . . . if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248 (internal quotation marks omitted).
We are mindful that "trial courts must be especially chary in handing out summary judgment in discrimination cases, because in such cases the employer's intent is ordinarily at issue." Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996); see also Bickerstaff v. Vassar College, 196 F.3d 435, 149 (2d Cir. 1999) (quoting Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464-65 (2d Cir. 1989)) ("[E]mployers are rarely so cooperative as to include a notation in the personnel file that the firing is for a reason expressly forbidden by law.").
However, this caution does not absolve the plaintiff from the responsibility of producing sufficient evidence from which a reasonable juror could return a verdict in his favor. See Anderson, 477 U.S. at 249-50 (1986); see also Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 461 (2d Cir. 2001) (affirming summary judgment where "[p]laintiffs adduced no evidence that [the employer's] legitimate non-discriminatory explanations for each of the challenged employment terms was false")
B. Discrimination Claim
The ADEA provides that it is "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). The critical issue in an ADEA case, as in any discrimination case, is one of proof of discriminatory intent on the part of the defendant. "[L]iability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision."Hazen Paper Co. v. Biggins, 507 U.S. 604, 610 (1993).
Thus, because allegations of age discrimination are as here, so often based on circumstantial evidence, they have often been analyzed using the three-step burden-shifting analysis established in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973). Under the McDonnell-Douglas framework, our first inquiry is whether plaintiff has established a prima facie case of discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). If the plaintiff has so pled, then a presumption of discriminatory animus is established and the burden shifts to defendant to produce evidence of a legitimate, non-discriminatory reason for its actions. See Tex. Dept of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). Assuming that defendant can produce such a justification, then the presumptions and burdens of the McDonnell-Douglas framework drop away, and only the ultimate question of "discrimination vel non" remains. Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142-43 (2000) (quoting U.S. Postal Serv. Bd. of Govs. v. Aikens, 460 U.S. 711, 714 (1983)).
We need not tarry long over the first two stages of theMcDonnell-Douglas framework. Gambrell was in the protected class by virtue of his age, fifty-six, and he was disciplined. Second, Gambrell accepts that "defendant has met its burden under the second strand of theMcDonnell-Douglas analysis." Pl. Brief at 25. See Padob v. Entex Info. Serv., 960 F. Supp. 806, 812 (S.D.N.Y. 1997) (declining to "linger long on the first two stages" of McDonnell-Douglas test, and instead assuming arguendo that plaintiff had satisfied the first, and noting that plaintiff had conceded that defendant had satisfied the second). Thus, we proceed directly to the third stage of the McDonnell-Douglas analysis.
In the third stage in the McDonnell-Douglas analysis, all presumptions disappear, and we analyze the sufficiency of the discrimination evidence as we would in any other case. Reeves, 530 U.S. at 142-43. At this stage, "the plaintiff . . . must be afforded the `opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.'" Id. at 143 (quoting Tex. Dep't of Cmty. Aff. v. Burdine, 450 U.S. 248, 253 (1981)).
To show that Amtrak's proffered reason for Gambrell's termination is a pretext for age discrimination, Gambrell makes two arguments: first, he attempts to undermine the legitimacy of Amtrak's disciplinary hearing, and second, he argues that evidence of Amtrak's discriminatory intent — exclusively disparate treatment evidence — demonstrates pretext. We consider each of these arguments.
i. Amtrak's disciplinary hearing
The Second Circuit's recent ruling in Graham v. Long Island R.R., 230 F.3d 34 (2d Cir. 2000), provides an instructive framework for our discussion of the disciplinary hearing. In that case, the plaintiff had been terminated because his urine had tested positive for the presence of alcohol in an analysis done by an independant laboratory used by the employer. Id. at 37. The plaintiff was terminated despite having undergone a urine test with his own personal physician that reported no alcohol. Id. The district court rejected the plaintiff's argument that his independent urine test showed the employer's test to be fraudulent, and thus that the employer's proffered justification for his termination was pretextual, and granted the employer summary judgment on all claims. Graham v. Long Island R.R., No. CV-93-1138 (DGT), 1999 U.S. Dist. LEXIS 3716, *23-*25, *31 (E.D.N.Y. Feb. 11, 1999). The Second Circuit, though reversing on other grounds, agreed with the district court's conclusion regarding the urine test. Graham, 230 F.3d at 44. The Court stated: "To sustain its employment decision, the [employer] need not show that the result of the drug test was actually correct, but only that it reasonably relied on [the laboratory's] test result." Id.
The analogy to the case before us is evident. The key question is not whether Gambrell actually engaged in physical behavior that violated Amtrak's Employee Conduct Code and Standards of Excellence, but rather, whether Amtrak when if terminated him was reasonable in relying on the hearing officer's determination that he had done so. Of course, if Gambrell could show that his disciplinary hearing was a mere sham, engineered to yield a finding of culpability no matter what the real facts, then it would not have been reasonable for Amtrak to rely on the hearing results. The Second Circuit noted as much in Graham, stating that the record contained "no evidence to suggest [the employer] purposefully interfered with the testing process in order to discriminate against plaintiff." Id. Thus, unless a reasonable fact finder could determine that Amtrak managers interfered with Gambrell's hearing in a manner that distorted the outcome in order to discriminate against him, Amtrak's reliance on the hearing results was reasonable as a matter of law.
We note at the outset the procedural regularity and due process conformity of the disciplinary proceedings concerning Gambrell. Gambrell had notice of the charges and the opportunity to testify and be represented by his union representative at the administrative hearing. The Hearing Officer, Michael O'Connell, was not involved in the investigation into the July 10 incident. Moreover, Gambrell was afforded two appeals, including an appeal to an independent governmental body, the Special Board of Adjustment. While that body reduced the penalty imposed, it found that there was "a proper basis" for the determination of guilt. Def. Exh. D.11 at 2.
The Board's reinstatement of Gambrell was based on the lack of evidence before the Board of any prior discipline against him. Def. Exh. D.11 at 2. Evidence of Gambrell's two previous firings and rehirings was apparently not introduced at this appeal.
Nonetheless, Gambrell argues that his disciplinary hearing was a "complete farce, replete with perjured testimony from supervisory personnel, a hearing officer that is an employee of the defendant, intentional refusal to disclose exculpatory evidence, and an agenda which considers the cost of retirement income when deciding whether to terminate a long term employee." Pl. Brief at 31. None of these allegations withstand analysis.
Based on perceived inconsistencies, Gambrell alleges that two witnesses, Siegel and Szachacz, committed perjury at his hearing. Gambrell selects portions of Siegel's hearing and deposition testimony to support this charge. At the hearing, Siegel, a service manager, testified that Gambrell "pushed" her, but also said that he "made a little shoving gesture and ran out the door." Hr'g Tr. (Def. Exh. D.6) at 45-46. In her deposition, she testified first that Gambrell "sort of pushed me aside," but later said that "he made a gesture" and did not touch her. Siegel Dep. (Pl. Exh. 3) at 16, 50. Whatever the differences in emphasis within the hearing or at her deposition, this balanced testimony is far from convincing evidence of perjury. In Szachacz's case, Gambrell points to certain aspects of his deposition questioning, namely that Szachacz says he did not stumble over any of the furniture in the room, and that he is taller and heavier than Gambrell. Szachacz Dep. (Pl. Exh. 8) at 39-40. Mindful of the rule that a question is not evidence and in light of Siegel's corroboration of Szachacz's testimony, once again, we find that Gambrell has not offered proof that Szachacz perjured himself.
Gambrell's reliance on the fact that the hearing officer was also an employee of Amtrak — presumably in accordance with the union contract — to undermine the legitimacy of the hearing is similarly unavailing. This is particularly so given the fact of two appeals, including one to an independent governmental board, both of which affirmed the finding of the hearing officer.
Next, Gambrell suggests that Amtrak refused to turn over exculpatory evidence, without citing any legal authority for such a duty. This allegation concerns two pieces of evidence: 1) the written statement of an employee, Keith Greene, that was not initially turned over to Chaplik, the Amtrak investigator; and 2) a videotape that depicted part of the incident, which though viewed by Chaplik, was not shown to Gambrell and was apparently not examined at his disciplinary hearing. Though the written statement of Keith Greene may not initially have been turned over to Chaplik, Gambrell introduced it into the record of the hearing himself, Hr'g Tr. (Def. Exh. D.6) at 165-66, and thus we presume that it received due consideration. As for the videotape, Chaplik testified that it only showed what transpired after Gambrell emerged through the doorway and stepped out into the area where Pendleton was standing. Chaplik Dep. (Attach. to Jan. 8, 2003 Letter of Pl.) at 56-59. The encounters with Gay, Siegel, and Szachacz all took place on the other side of this door, while Gambrell was traveling from his counter to the door, and thus, would not have been on the videotape in any event. Having examined the so-called non-disclosed exculpatory evidence, it appears to be either not exculpatory and/or disclosed.
Continuing, the allegation that Amtrak considers retirement income when considering whether to terminate older employees comes from a statement by Chaplik that Gambrell has been taken out of context. When read in context, it is clear that Chaplik means Amtrak is actually less likely to terminate employees who are closer to retirement.
In his deposition, Chaplik was asked whether longevity with Amtrak played a role in Amtrak's decision to terminate Gambrell, to which he replied, "Not that I'm aware of," and added, "I don't believe the issue exists." Chaplik Dep. (Attach. to Jan. 8, 2003 Letter of Pl.) at 27-28. The following exchange ensued:
Q: What do you mean by you don't believe the issue exists?
A: Well, longevity is one factor that people look at for determining whether a person is going to do a good job in the future or not. If they have come on and been there only a short time and their performance has been particularly bad, the corporation might be more interested in cutting that employee loose at that point in time. However, the balance starts to shift after an employee has been there for a long time, because now the employee is approaching a point of retirement income from the corporation. And I would say that the employee's actions would have to be more severe to be fired as a long-term employee than as a short-term employee.
Q: So when you say it's not an issue, you meant that you didn't believe it was an issue based on Mr. Gambrell's 30 years; what are you saying?
A: That's correct. Based on his longevity with the company, that would only be in his favor and not a negative.Id. at 28-29
Finally, Gambrell has made no showing that Deborah Johnson's contact with witnesses concerning their statements had an impact on the hearing. Though she appears to have asked both Keith Greene and Judith Gay to "clarify" their written statements, Greene elected not to do so. This fact alone indicates that any pressure she might have applied was short of overwhelming. While Gay made a slight change, modifying her description of Pendleton's arms to say they were "waving" instead of "swinging," it was the original version of her statement that was admitted into the hearing record. Moreover, Gay's change was not made in any surreptitious manner — she informed the hearing participants of the change at the beginning of her testimony.
Creene's statement was admitted to the hearing record. Hr'g Tr. (Def. Exh. D.6) at 166.
In sum, Gambrell's efforts to undermine the legitimacy of the hearing do not find support in the record. Rather, the hearing record supports the hearing officer's findings, as the appellate tribunals found. Moreover, regardless of the testimony of Gay, Siegel, or Szachacz, it is uncontroverted that Gambrell left his post behind the counter to go through an adjoining office and a door into the area where Pendleton was standing, and that, when he came through that door, another Amtrak employee immediately judged that it was necessary to restrain him physically before he moved any further.
When asked why he left the counter area, Gambrell said: "I didn't feel secure back there, there was — if he had decided to pick: up something and throw it, he couldn't help but hit me, because there was nowhere for me to go, not even to duck down." Mar. 4, 2002 Gambrell Dep. (Def. Exh. C) at 83. This explanation — that he left the counter because he feared for his safety — is hard to accept given that, upon leaving the counter area, he immediately went through a door and into an area in which he was even more exposed to Pendleton.
Under all these circumstances, and having carefully considered all of Gambrell's arguments, we conclude that Amtrak was reasonable in relying on the results of the disciplinary hearing in terminating Gambrell.
ii. Evidence of discriminatory intent
Putting aside his unsupported contentions concerning alleged improprieties relating to his hearing, Gambrell has failed to offer any meaningful evidence or discriminatory intent on Amtrak's part. Gambrell raises no direct evidence of age discrimination, such as negative age-based comments in the workplace. He does argue that he was subject to disparate treatment based on age. However, the other employee on whom he relies most heavily to show disparate treatment, Pendleton, was not similarly situated to Gambrell, and in any event, Gambrell has failed to show any real difference between Amtrak's treatment of him and any other younger worker.
Gambrell claims he and Pendleton were treated differently in response to the July 10 incident. This argument fails, however, for two reasons. First, Gambrell has not shown that Pendleton was in fact treated any differently than he was. Gambrell has failed to put forth any evidence that Pendleton was not also disciplined as a result of the incident. While Gambrell's counsel queried multiple New York-based Amtrak witnesses on what happened to Pendleton, none knew the answer and the matter was apparently not pursued further. Siegel Dep. (Pl. Exh. 3) at 32, Chaplik Dep. (Attach. to Jan. 8, 2003 Letter of Pl.) at 29-31. Indeed, it appears that the New York Amtrak supervisors did exactly what they should have done with respect to Pendleton: contacted the D.C. supervisors and let them know he had been involved in an altercation. Johnson Dep. (Pl. Exh. 4) at 14-15. Gambrell must show that a reasonable fact finder could conclude that Pendleton was treated differently than Gambrell, and this he has failed to do.
Marjorie Siegel, an Amtrak service manager, testified that immediately after the incident, Gambrell was "taken out of service," but Pendleton was not. Siegel Dep. (Pl. Exh. 3) at 31. This appears to have been a misstatement. In the same deposition, Siegel gave apparently conflicting testimony, commenting, "I do know that [Pendleton] did not work his return train." Id. at 32. Moreover, a more senior Amtrak supervisor, Deborah Johnson, the Superintendent for the New York crew base, stated that Pendleton was in fact taken out of service and given a drug and alcohol test. Johnson Dep. (Pl. Exh. 4) at 16-17. Even if Pendleton was not taken out of service immediately after the event, this could well have been attributable to the necessity of staffing a departing train, while it may have been easier to staff Gambrell's desk duties, either that day or at a later date. In any event, we do not view the decision of whether to take either Gambrell or Pendleton out of service mere hours after the incident as the type of adverse employment action that, if present for one employee but not for the other, would give rise in and of itself to an ADEA claim.
Second, even if Gambrell had established disparate treatment, Pendleton's different employment status greatly weakens the strength of the inference that could be drawn from any such disparate treatment. Pendleton was based in a different city and reported to wholly different supervisors. Thus, to draw an inference of discrimination in these circumstances would require speculation about a high-level conspiracy at Amtrak that is simply not supported by the record.
This case illustrates why the Second Circuit has made the fact of whether two employees report to the same supervisor part of the inquiry into whether two employees are "similarly situated" for purposes of establishing circumstances giving rise to an inference of discrimination through disparate treatment under the first stage of theMcDonnell-Douglas test. In Shumway v. United Parcel Service, Inc., 118 F.3d 60, 64 (2d Cir. 1997), the court adopted the "similarly situated in all material respects" test from the Sixth Circuit Court of Appeals inMitchell v. Toledo Hosp., 964 F.2d 577 (6th Cir. 1992). In Mitchell, the Sixth Circuit stated: "[T]o be deemed `similarly-situated', the individuals with whom the plaintiff seeks to compare his/her treatment must have dealt with the same supervisor. . . ." Id. at 583. In Shumway, the Second Circuit pointed out that the alleged disparate treatment was between employees who reported to different supervisors in concluding that the plaintiff was not "similarly situated" to those employees. 118 F.3d at 64.
Graham v. Long Island R.R., a later Second Circuit case, questioned what exactly constitutes being "similarly situated in all material respects." 230 F.3d 34, at 39-40 (2d Cir. 2000) (stating that Shumway adopted the "all material respects" standard from Mitchell "without discussion," and concluding that "[w]hat 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"). However, working in different locations or reporting to different supervisors continues to be important to the similarly situated analysis, even in the wake ofGraham. See Gonzalez v. N.Y. City Transit Auth., 00 Civ. 4293 (SHS) (AJP), 2001 U.S. Dist. LEXIS 5908, at *57 (S.D.N.Y. May 9, 2001) (noting that other employees plaintiff claimed were "comparable worked at another Transit Authority facility" as part of holding that those employees were not similarly situated to plaintiff); Ramos v. Marriott Int'l, Inc., 134 F .Supp.2d 328, 340 (S.D.N.Y. 2001) (noting that plaintiff and co-employee "answered to the same supervisor" as part of holding that plaintiff and co-employee were similarly situated).
Gambrell's other allegations of disparate treatment would clearly be insufficient to make out even a prima facie case of discrimination. He alleges that "a younger worker . . . sexually assaulted a female employee in the workplace," Pl. Rule 56.1 at 8, and that this younger worker was not terminated, but instead relocated to a different work area. However, Gambrell offers neither the name nor the age of the worker, nor any further details concerning this worker's behavior or punishment. Moreover, his basis for knowing that the worker assaulted another Amtrak employee is the account he heard from the alleged victim, and his basis for believing that the worker was relocated rather than terminated is from other employees. Mar. 25, 2002 Gambrell Dep. (Def. Exh. C) at 27-29. Thus, his testimony concerning this worker is inadmissible hearsay. See Caputo v. Pfizer, Inc., 267 F.3d 181, 188 (2d Cir. 2001) (stating that summary judgment is appropriate only if admissible evidence establishes that there is no genuine issue of material fact).
Gambrell also argues that the treatment of another station operator, Rusty Chivers, is sufficient to show disparate treatment. Siegel, an Amtrak service manager, testified that Chivers "threatened to burn me up and kill me." Siegel Dep. (Pl. Exh. 3) at 54. Gambrell does not show that he and Chivers were subject to disparate treatment, however. Siegel testified that Chivers was suspended for a period, though she admitted she did not know for how long. Id. at 55-56. She also could not say whether his suspension was with or without pay. Id. at 56. Thus, again, Gambrell has not shown disparate treatment of him vis-a-vis another employee.
To sum up, a reasonable fact finder could not conclude that Amtrak's reliance on the outcome of Gambrell's disciplinary hearing was unreasonable, much less conclude that his termination was based on discrimination due to his age. Thus, we grant summary judgment to Amtrak on the issue of age discrimination.
C. Retaliation
Gambrell also argues that Amtrak retaliated against him for filing complaints of age discrimination prior to his termination. Gambrell asserts that the termination itself was in retaliation for these complaints.
Under the ADEA a victim of age discrimination must first file his charge with the EEOC, and no action may be brought in federal court unless the claim was properly raised with the EEOC, Miller v. Int'l Tel. Tel. Corp., 755 F.2d 20, 23 (2d Cir. 1985), or the claim is "reasonably related" to those claims filed with the EEOC. Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (quoting Shah v. New York State Dep't of Civ. Serv., 168 F.3d 610, 614 (2d Cir. 1999)). In Butts v. City of New York Dep't of Hous. Pres. Dev., the Second Circuit laid out three situations where claims not alleged in an EEOC charge are sufficiently related to the allegations in the charge that they are not barred. 990 F.2d 1397, 1402-03 (2d Cir. 1993). The first is "where the conduct complained of would fall within the `scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Id. at 1402 (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 108 n. 10 (2d Cir. 1978) ). The second is a claim "alleging retaliation by an employer against an employee for filing an EEOC charge." Id. The third "where a plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EL charge." Id. at 1402-03.
Here, Gambrell did not allege retaliation in his EEOC complaint. Def. Exh. D.12. Thus, his retaliation claim may only survive summary judgment if it is reasonably related to his claim of age-based discrimination before the EEOC. The retaliation claim is not reasonably related under the first Butts theory. Where the EEOC charge alleges discrimination but not retaliation, the reasonable scope of the agency's investigation cannot be expected to encompass allegations of retaliatory motive. Chinn v. City Univ. of New York Sch. of Law, 963 F. Supp. 218, 223 (E.D.N.Y. 1997). The second theory is not applicable, because Gambrell alleges retaliation only for filing internal complaints of discrimination with Amtrak before his termination, not for filing the EEOC complaint after his termination. The third theory is also unavailing, because Gambrell's retaliation claim is clearly not a further incident of retaliation carried out in precisely the same manner alleged in the EEOC complaint.
Thus, we conclude that Gambrell is barred from pursuing his retaliation claim before us due to his failure to raise that charge in his EEOC complaint. In the alternative, were we to consider the merits of that claim, we would reject it. In order to prevail on a retaliation claim, the plaintiff must demonstrate: (1) that he was engaged in protect activity, (2) that the employer was aware of the activity, (3) that the employer took an employment action adverse to plaintiff, and (4) that the adverse action was causal connected to the protected activity. Hollander v. Am. Cyanamid Co., 895 F.2d 80, 85 (2d Cir. 1990).
The protected activity in which Gambrell claims to have engaged is writing letters and sending copies of his written reprimands with his own comments appended to his supervisors. He alleges that due to these actions, Amtrak required him to take urine tests, and eventually terminated him.
Gambrell faces a number of problems in advancing this argument. First, he has not offered copies of any of these letters or written reprimands to bolster his claim. His sole support for the claim is his testimony, which is vague and at times confused. Moreover, it does not appear that these letters and comments were In fact complaining of age discrimination. His deposition testimony indicates that the letters were complaining about a comment a supervisor made to Gambrell telling Gambrell that the supervisor did not like him, Mar. 25, 2002 Gambrell Dep. (Def. Exh. C) at 48, 54, and the comments he included with his written reprimands stated he felt he was being harassed because he was "speaking out," id. at 54. Without specific evidence that his "speaking out" was over perceived age discrimination, a reasonable fact finder could not find that this constituted protected activity.
Even if these letters were complaining about protected activity, Gambrell's testimony concerning the letters is too vague and contradictory to be credited by a reasonable juror. Gambrell alleges that, between 1992 and 2000, the time during which he says he was required to undergo urine tests, he wrote three letters to his supervisors complaining of discrimination. Id. at 56. One of these letters was addressed to the CEO of Amtrak, and Gambrell claims that "right after" writing that letter, he was required to undergo a urine test. Id. at 57. Gambrell first testified that the letter to the CEO was written in 2000, but then changed his testimony to say it was written in 1999. Id. at 57-58. He also testified initially that the urine test was administered in February of 2000, but then changed that date to February of 2001. Id. at 57-58. Thus, his most recent version of events is that his letter to the CEO was written in 1999, and the urine test took place in 2001, in spite of his testimony that the urine test came "right after" the letter to the CEO. Id. at 57.
Finally, in addition to our difficulties with Gambrell's credibility on this point, a causal connection between the internal complaints and either the urine test or the termination is wholly lacking.
Thus, we grant summary judgment to Amtrak on the retaliation claim.
CONCLUSION
For the above reasons, Amtrak's motion is granted, and all claims are dismissed. The Clerk of the Court is respectfully directed to close this case.