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Spencer v. Massachusetts Bay Transportation Authority

United States District Court, D. Massachusetts

June 5, 2019

PERRY SPENCER, Plaintiff,
v.
MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, Defendant.

          MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          F. Dennis Saylor IV United States District Judge

         This is a case of alleged employment discrimination based on race and retaliation for engaging in protected activity. Plaintiff Perry Spencer, an African-American man, works as a streetcar motorperson for defendant Massachusetts Bay Transportation Authority (“MBTA”).

         Spencer has a lengthy history of suspensions and discipline for safety and drug violations. He was terminated from his position in 2006 for a safety violation. He then brought claims of race discrimination before the Massachusetts Commission Against Discrimination (“MCAD”). He was reinstated in 2008 after an arbitration proceeding. Ultimately, the parties settled the MCAD proceeding.

         Spencer alleges that upon his return to work, the MBTA took various adverse employment actions against him. Specifically, he alleges that he was subjected to discrimination and retaliation when the MBTA deprived him of overtime opportunities in 2010 and 2011, denied him an opportunity for a promotion in 2011, and subjected him to disparate discipline for safety violations in 2011 and 2016.

         Spencer asserts claims for discrimination and retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and also seeks recovery for negligent infliction of emotional distress under Massachusetts common law.

         The MBTA has moved for summary judgment on all counts. For the reasons stated below, the motion will be granted.

         I. Background

         A. Factual Background

         The following facts are as set forth in the record and are undisputed except as noted.[1]Perry Spencer is an African-American man. (Spencer Aff. ¶ 1). He was hired as a “streetcar motorperson” by the MBTA in 2000. (Id. ¶ 3; Spencer Dep. at 6-7, 22).[2] He is responsible for driving trains on the MBTA Green Line in Boston, Brookline, Cambridge, and Newton. (Spencer Aff. ¶ 2; Spencer Dep. at 7; Thibodeaux Aff. ¶ 8).

         1. 2006 MCAD Charge and 2008 Reinstatement

         On May 15, 2006, Spencer was found to be operating his train with the left-side doors open. (Thibodeaux Aff. ¶ 10). As a result, on May 25, 2006, he was suspended for 30 days. (Id.). That suspension included a recommendation for discharge. (Id.).

         Prior to his May 2006 suspension, Spencer had been disciplined for driving a two-car train without a second operator. (Id. ¶ 11). He also failed a subsequent drug test. (Id.). The MBTA and the union reached a settlement agreement concerning the conditions under which he could remain employed. (Id.). That agreement provided that any further violation by Spencer of any MBTA rule or regulation would result in his discharge. (Id. ¶ 12). Accordingly, on August 16, 2006, he was terminated as a result of his May 2006 suspension. (Id. ¶ 13).

         On December 26, 2006, Spencer filed a charge with the MCAD alleging that his termination, as well as certain scheduling assignments by an MBTA inspector, were discriminatory. (Cook Aff. Ex. 1; Spencer Aff. ¶¶ 8-9, Exs. 1-2). He also pursued a union grievance. (Spencer Aff. ¶ 10, Ex. 3; Thibodeaux Aff. ¶ 14). On September 15, 2008, he was reinstated following a labor arbitration proceeding. (Id.).[3]

         2. October 2010 Suspension

         On October 6, 2010, Spencer received a one-day suspension for violating the MBTA's attendance policy. (Def. Ex. D at Response #7; O'Brien Aff. ¶ 4, Exs. 1-2). As a result of that suspension, and in accordance with MBTA policy, he was ineligible to apply for any substitute-coverage positions-essentially, promotional opportunities-for a period of one year after his date of suspension. (Cook Aff. Ex. 5 at 5; O'Brien Aff. ¶¶ 8-9, Ex. 4). Nonetheless, in March or April 2011, he attempted to apply for a substitute-coverage position as a yardmaster. (Cook Aff. Exs. 4-5, 9; Spencer Dep. at 129). He was deemed ineligible due to his October 2010 suspension. (Id.).

         3. December 2010 Overtime Bypass

         On December 28, 2010, Spencer was bypassed for an overtime assignment in favor of a white, less senior, employee. (Spencer Aff. ¶¶ 14-15). He alleges that Paul Belanger, a white MBTA inspector, told him there was no overtime available that day. (Id. ¶ 14). In fact, overtime had been assigned to a white employee with less seniority. (Id. ¶ 15).[4]

         That same day, Spencer submitted an internal complaint that he was not offered the overtime assignment. (Cook Aff. Ex. 10). The MBTA supervisor on duty, Margaret Fong, an Asian-American woman, reviewed his complaint and acknowledged the mistake. (Fong Aff. ¶¶ 1, 4-7; Cook Reply Aff. Ex. A). Specifically, she acknowledged in an e-mail to other MBTA personnel that it was “[her] mistake for not double checking the hiring procedure.” (Fong Aff. ¶ 7; Cook Reply Aff. Ex. A). She requested that a notation be placed in Spencer's personnel file, and reinstructed Michelle McHugo, the yardmaster, on the proper procedure for assigning overtime. (Fong Aff. ¶¶ 6-7; Cook Reply Aff. Ex. A).[5]

         On January 10, 2011, Spencer filed a complaint with the MBTA's Office of Diversity and Civil Rights (“ODCR”), alleging that the overtime bypass was retaliatory and discriminatory. (Cook Aff. Ex. 11; Spencer Aff. ¶ 23, Ex. 6). He specifically alleged that “management of the green line are upset that I got my job back and the MCAD ruled in my favor.” (Cook Aff. Ex. 11).

         4. June 2011 Overtime Bypass

         On June 18, 2011, Spencer and Belanger were involved in another overtime bypass incident. On that date, Belanger assigned Spencer an 8:00 a.m. to 7:15 p.m. overtime shift. (Spencer Dep. at 81-83; Thibodeaux Aff. ¶ 25). The MBTA contends that Spencer completed the overtime assignment, and was released at the end of his shift at 7:15 p.m. (Thibodeaux Aff. ¶ 26). He disputes this, contending he was “knocked off the clock” by Belanger before 7:15 p.m., while a less-senior employee, an African-American woman, was permitted to continue working overtime. (Spencer Aff. ¶ 29; Spencer Dep. at 81-83). He alleges that this constituted an overtime bypass because he was not allowed to work the same amount of overtime as the less-senior employee. (Id.). Belanger testified that at the time of the June 18, 2011 incident, he was not aware that Spencer had filed a complaint with the MCAD or ODCR, or even that Spencer had ever complained to anyone at the MBTA that Belanger subjected him to discrimination. (Belanger Dep. at 20-21, 80).

         On June 24, 2011, Spencer filed a second MCAD charge, this time alleging that the MBTA retaliated against him for “settling” his 2006 MCAD case in 2010. (Cook Aff. Ex. 3).[6]Specifically, he alleged that the MBTA retaliated against him by denying him overtime on three occasions, by not allowing him to apply for the substitute yardmaster position, and by treating three medical absences as unexcused. (Id.).[7]

         5. September 2011 Speeding Suspension

         On September 13, 2011, Spencer received a three-day suspension for speeding. (O'Brien Aff. ¶¶ 10, 14, Exs. 5-6, 8-9). On that day, a random speeding audit found that he was driving 16 miles per hour on a section of track where the speed limit was 10 miles per hour. (Id. ¶¶ 10-11, Exs. 5-6; Spencer Aff. ¶ 39, Ex. 8; Spencer Dep. at 110).[8] The same audit found that two other operators, a white man and an African-American woman, were also speeding, at 15 and 14 miles per hour, respectively. (O'Brien Aff. ¶ 12, Ex. 5; Spencer Aff. ¶ 40, Ex. 8; Spencer Dep. at 110). Speeding of any kind is a violation of MBTA's safety rules. (O'Brien Aff. ¶ 13, Ex. 7). However, under the MBTA progressive-discipline policy, only an operator found to be speeding more than five miles per hour over the applicable limit may receive a three-day suspension. (Id. ¶¶ 14-15, Exs. 6, 8-9). Accordingly, Spencer received a three-day suspension for speeding, but the other two employees did not. (Id.).

         On November 16, 2011, Spencer filed a rebuttal statement in his 2011 MCAD proceeding, alleging additional retaliatory or discriminatory actions by the MBTA, including the denial of overtime on five occasions in 2010 and 2011, and the three-day suspension for speeding. (Cook Aff. Ex. 4).[9]

         On May 30, 2014, the MCAD issued a finding of lack of probable cause in the 2011 proceeding. (Id. Ex. 5).[10]

         6. January 2016 Split-Switch Accident

         On January 15, 2016, Spencer and another MBTA employee, Scott Collins, were working at the Reservoir yard on the Green Line. (Def. Ex. D at Responses #3, 5; Spencer Dep. at 117). Collins is a white man. (Id.).

         Spencer and Collins were instructed to bring a two-car train with an air-pressure problem to the report rail. (Id.). After determining which of the two cars was disabled, they separated the cars. (Collins Dep. at 11-12, 15; Spencer Dep. at 117). Collins then attempted to drive the disabled car to the car house for repairs. (Id.). In doing so, he approached and then crossed switch #25. (Collins Dep. at 15). He then stopped the car. (Id.).

         If Collins had not stopped the car after crossing switch #25, it would have next crossed switch #21. Instead, he stopped it just short of switch #21. (See Collins Dep. at 15-16, 23; Pl. Ex. 7 (Cain Dep. Ex. 2)).

         Collins changed ends in the car, because it could be operated from either end. (See Collins Dep. at 15-17). He got out of the car and threw switch #25 in the opposite direction, so he could head back over the switch onto a different track toward the car house. (Id.).[11]

         Collins then got back in and attempted to drive the disabled car toward the car house. (Id. at 16-17). However, the car would not move, as it had become completely immobile due to low air pressure. (Id. at 17; Spencer Dep. at 117-20).

         Collins apparently notified Spencer of the air pressure problem. Spencer boarded a different car, drove it over to the rear of Collins's disabled car, and coupled it in order to provide air pressure to the disabled car. (Collins Dep. at 19-20; Fong Aff. ¶ 11, Ex. 2; Spencer Dep. at 117-18). The two cars appear to have been coupled together over switch #21-in other words, the wheels of the Collins car were on one side of the switch, and the wheels of the Spencer car were on the other.

         After coupling the cars together, Spencer did not return to his car. (Collins Dep. at 18-20; Fong Aff. ¶ 12, Ex. 2). Instead, he got in the Collins car. (Id.). Spencer did not look at switch #21 or notice which way the switch was positioned before he got in the Collins car. (Fong Aff. ¶¶ 11, 13, Ex. 2; Spencer Dep. at 122-23).

         Unfortunately, switch #21 was set in the wrong direction. When Collins began moving his car toward the car house, the Spencer car, which was coupled to it but vacant, crossed switch #21. (Fong Aff. ¶¶ 13-14; Spencer Dep. at 122). The improper position of switch #21 caused the Spencer car to move on a different track than the Collins car, causing a “split switch” accident. (Collins Dep. at 23; Fong Aff. ...


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