United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT'S MOTION FOR
Dennis Saylor IV United States District Judge
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
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.
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.
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
MBTA has moved for summary judgment on all counts. For the
reasons stated below, the motion will be granted.
following facts are as set forth in the record and are
undisputed except as noted.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,
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).
2006 MCAD Charge and 2008 Reinstatement
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
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).
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.
October 2010 Suspension
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.).
December 2010 Overtime Bypass
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).
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).
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.
June 2011 Overtime Bypass
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,
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).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.).
September 2011 Speeding Suspension
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). 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.).
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.
30, 2014, the MCAD issued a finding of lack of probable cause
in the 2011 proceeding. (Id. Ex. 5).
January 2016 Split-Switch Accident
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.).
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.).
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)).
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.).
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
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
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).
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.