DECISION AND ORDER In this employment discrimination action, defendants Metro-North Commuter Railroad (Metro-North), Metropolitan Transportation Authority (MTA), Joseph Streany, Justin Vonashek and Gary Martens (collectively, Defendants) move pursuant to CPLR 3212 for summary judgment dismissing the complaint in its entirety. For the reasons set forth below, Defendants’ motion is granted in part and denied in part. BACKGROUND This case arises from Plaintiff Andrea Ramos’s (Plaintiff or Ms. Ramos) alleged wrongful termination as a Metro-North accident investigator. Plaintiff claims that Defendants engaged in discriminatory and retaliatory conduct against her based upon her race, age, gender and disability, and created a hostile work environment, all in violation of the New York City Human Rights Law (NYCHRL) and the New York State Human Rights Law (NYSHRL).1 Pursuant to her April 23, 2018 complaint, Plaintiff’s causes of action sound in discrimination, hostile work environment, and retaliation. Defendants move for summary judgment dismissing the complaint, asserting that Plaintiff was fired because she violated an important Metro-North policy requiring employees in her position to disclose their use of certain medications. Defendants also assert that Plaintiff’s complaints about her alleged hostile treatment do not rise to the level of an “adverse employment action” under the NYCHRL and NYSHRL, save her termination, which again was justified by her violation of Metro- North’s prescription drug reporting requirement. Hostile Work Environment Plaintiff began her Metro-North career in July 2006 in the Operations Department. In July 2015 she applied for the newly created position of Accident Investigator in the Office of System Safety. She was told about the requirements for the position, including the 24/7 availability, by defendant Joseph Streany, who at that time was the department lead for hiring Accident Investigators. He claims to have selected Plaintiff to be interviewed and chose her for the job.2 After a string of accidents in 2013 and 2014, Metro-North created the Accident Investigator position to enhance the safety of the railroad and prevent future accidents (Streany Aff. 2). The Accident Investigator’s primary responsibilities are “conducting on-site investigation[s] of critical incidents,” determining “initiating causes” and “contributing factors,” and recommending “corrective actions required to eliminate or reduce the potential for future accidents.” (Def. Ex.12). Accident Investigators must also be able to timely respond to accident scenes (Streany Aff. 8): To guarantee that Accident Investigators are available to respond in the event of an emergency, I keep track of the investigators’ workloads, meetings and other obligations. Generally, I select which Accident Investigator will report to the scene based on a variety of factors, including geographical proximity, workload, the type of incident, particular expertise of each Accident Investigator, and schedules. If an Accident Investigator notifies me that they will be unavailable to work at a given time, I remove them from the pool of potential responders considered for responding to an accident during that time period. Without such advance notice, it is assumed that all Investigators are active and available to be called to report to an accident site at any time. Mr. Streany asserts that he discussed the requirements of the position with Plaintiff during her interview and specifically reiterated that the position required on-call shifts, weekends, call-ins, emergency response, and other non-traditional scheduling. Plaintiff was offered the position and began working as an Accident Investigator on April 15, 2015 (Streany Aff. 3). According to Plaintiff,3 she began experiencing discrimination almost immediately when she was excluded from social activities at a National Transportation Safety Board conference (Ramos Aff. 8). After that she noticed that the bulk of investigations were being assigned to white, male colleagues. In January 2016, things improved when defendant Justin Vonashek4 became Vice President of the Office of System Safety. Id. Thereafter, Metro-North named Plaintiff co-chair of the Health and Well-Being Initiative (Healthy4U), an employee mental health group proposed by Plaintiff in 2013. Id. However, things quickly began to deteriorate again. As one example, in February 2016, Plaintiff underwent foot surgery which resulted in the need for her to take leave under the Family and Medical Leave Act. While on leave she requested permission to come to the office just to attend department meetings and training programs necessary for her professional certifications. Mr. Streany allegedly denied these requests. When Plaintiff returned from leave, she found that her desk had been moved next to Mr. Vonashek’s administrative assistant. She also felt ignored by her colleagues. During a department meeting in July 2016, Mr. Vonashek shared that there would be a posting for another Investigator position. Investigator Rich Ferlauto responded “[N]o need to hire anyone, Josh and I can handle all the investigations, and split the salary.” The Plaintiff addressed Mr. Vonashek after the meeting regarding this outburst and Mr. Vonashek replied that he did not hear it (Ramos Aff. 31). In August 2016, MTA’s Director of Hazard Analysis, Steve Chayt, commented to the Plaintiff in front of four co-workers that “just because she has worked in transportation for 20+ years, did not mean she knew anything about safety.” (Id. at 32). In September 2016, Plaintiff was allegedly told that she would be relocated to the Mott Haven and Highbridge facilities and that she would have to find her own workspace. Plaintiff found this strange since safety department employees had never occupied office space at either of these facilities. Plaintiff’s ADA Request and Performance Improvement Plan In November 2016 Plaintiff was told that she would have to drive a company-issued vehicle to and from work, and that she allegedly would also have to pay E-Z Pass charges and annual taxes for usage of the car. Mr. Streany testified that he requested the allocation of take-home vehicles for each investigator because the job required a 24/7 response (Streany Dep. p. 95). This same sentiment was expressed by Mr. Vonashek, who averred that Metro-North assigned vehicles to Accident Investigators to ensure that they could get to incident scenes quickly (Vonashek Aff. 7): Metro-North allocates a company vehicle to each Accident Investigator to ensure they can reach any incident, at any location within Metro-North territory, at any time and without delay — even in the event of mass transit service interruptions or problems with their personal vehicles. The assigned company vehicle is maintained by Metro-North and is marked with the Metro-North logo so it is readily identifiable and Metro-North personnel can be permitted near the scene of the accident or incident. The company vehicle is equipped with all necessary tools to facilitate emergency handling at the scene of the accident. Accident Investigators are required to maintain a valid driver’s license and to have the company vehicle readily accessible on a 24/7 basis. Defendants contend that all Accident Investigators were mandated to use a company vehicle and that Metro-North was responsive to any issues that arose. In this regard, in December 2016, Plaintiff contacted Metro-North’s ADA Accommodations Unit to request exemption from this requirement on the basis that excessive driving exacerbated a pre-existing back disability. Things became worse for Plaintiff when, in mid-December 2016, she was in a car accident on her way to work. Shaken from the accident, she took the train home and then took several sick days (Ramos Aff. 42). In or about January 2017 Plaintiff set up a meeting with Mr. Vonashek and Ms. Velez from Human Resources to discuss her ADA accommodation request. During that meeting Mr. Vonashek allegedly denied her request, stating: “No!”, “Just do what you are told to do and all will be good,” “Your problem is you are worrying about what other people are doing, just worry about yourself,” and “Don’t you have FMLA? So, use it!” (Ramos Aff. 54). Defendants assert that they were responsive to Plaintiff’s accommodation requests. For example, defendant Gary Martens,5 who handled the Metro-North’s ADA Accommodations requests, provided Plaintiff with Reasonable Accommodation Request forms and contacted his colleague in Metro North’s Employee Relations unit regarding the company’s toll reimbursement policy for company take-home vehicles6 (Martens Dep. pp. 130-1). Despite receiving the blank Reasonable Accommodation Request form on December 8, 2016, Plaintiff returned the completed form on January 4, 2017, and did not supply supporting medical documentation to evaluate her request until February 9, 2017 (Defendants’ Exs. 34-37). Defendants also claim that Plaintiff was not meeting job expectations. For example, she was instructed to use the company vehicle assigned to a colleague while he was on vacation and to work out of an alternate field office to ensure coverage for two days.7 However, a check of the vehicle’s GPS report found that it was never moved (Streany Aff. §10). Also, Plaintiff allegedly refused to drive the company vehicle to and from work each day. According to Mr. Streany (Streany Aff. §9) [Plaintiff] immediately disregarded my instructions. She took the vehicle home that day and left it parked at her residence until November 29. I had to remind her repeatedly, on multiple occasions during the following weeks and months, that driving the vehicle to and from home every day was a crucial part of her job requirements — and one that Mr. Vonashek took very seriously — because it ensured that she could reach incident sites reliably. On December 28, 2016 Plaintiff was placed on a Performance Improvement Plan (PIP) by Mr. Streany and Mayela Velez of Metro-North’s human resources department. The PIP included several areas of concern, including timely reporting, following directions, and taking the company vehicle daily. In terms of reporting, Defendants assert that more than half of Plaintiff’s final reports were submitted in an untimely manner. According to Mr. Streany this rate was much higher than that of other Investigators (Streany Aff. §14). The “following directions” area of improvement concerned an October 28, 2016 incident in which Plaintiff allegedly failed to investigate a stop signal violation at the Highbridge yard (Streany Aff. §13): After telling me that she would head to the scene of the incident, Ramos instead went to Grand Central where she obtained second-hand information about the incident and emailed it to me as evidence of her investigation. It was only after I spoke to managers in the Transportation Department that I learned that Ramos never made it to the incident scene to investigate the accident herself, as per Accident Investigator duties. Ramos then filed both her preliminary and final reports late. Plaintiff responded to each alleged area of concern in writing. She claims that her incident reports were late because, unlike other investigators, she was not given basic needs like a workspace or a laptop (Ramos Dep. p. 262). As for the October 2016 investigation at the Highbridge Yard, her PIP meeting was the first time she became aware that Mr. Streany had taken issue with her conduct. In fact, she claims to have had a performance evaluation in November 2016, a month before the PIP meeting, and that no issue regarding the Highbridge Yard investigation was raised. Plaintiff also took issue with Defendants’ complaint about her not driving to work each day, noting that there was no written MTA policy which required assigned cars to be driven home daily (Ramos Aff. 47-49). Mr. Streany and Ms. Velez met with Plaintiff weekly over the following months to review her ongoing performance goals as set out in the PIP (Streany Aff. §16). Mr. Streany testified that Plaintiff seemed unclear about certain of the PIP expectations (Streany Dep. p. 77-78): Q. After the first PIP was over, did you give her a second PIP?…Did you write another PIP after the first PIP? A. Mayela and I decided that we needed to be a little bit more defined and put a little bit more information into the second PIP, because it very much seemed like the first one wasn’t understood by everyone, particularly Andrea. Q. Like, what are you thinking of when you say that?… A. A good example would be when she was instructed not to participate in an extracurricular committee, and then she did, when she was told not to. Mr. Streany issued an updated PIP with very specifics details about Plaintiff’s basic job duties (Streany Aff. §17; see also Defendants’ Ex. 33). This second PIP extended her probation period for another 90 days. Plaintiff was also notified that she would no longer be allowed to participate in Healthy4U (id. at 55). Curiously, while the second PIP specified that Plaintiff was to comply with all company directives, she was advised that she had not violated any specific directive since her first PIP went into effect. For this reason, it was unclear to Plaintiff why her PIP was being extended as opposed to simply being revised for the duration of the 90-day probation period. In or about February 2017, Metro-North amended its policy so that employees using company cars could use a corporate EZ-pass, eliminating what had been a financial hardship on the Plaintiff and dramatically reducing her commute time by allowing her to take a shorter route (Martens Dep. p. 131; see also Defendants’ Ex. 24). While Plaintiff was content with the new policy, she claims that as retaliation she was once again forced to relocate, this time to White Plains (id. at 66-67). EEOC Complaint and Termination Believing her treatment was discriminatory in nature, on March 6, 2017 Plaintiff filed a claim of discrimination and retaliation with the Equal Employment Opportunity Commission (EEOC). Defendants were notified of the EEOC complaint on March 15, 2017. One day earlier, on March 14, 2017, Mr. Martens drafted a letter denying Plaintiff’s accommodation request to be exempted from being required to drive to work (Defendants’ Ex. 43; Martens Dep. pp. 247-8). The letter explained the risk that Plaintiff’s request posed: “We were unwilling to accept the down time where [Plaintiff] would not be able to respond if, God forbid, something happened” (Martens Dep. p. 248). The letter was never sent because Plaintiff was subsequently terminated for violating Defendants’ prescription drug reporting policy (id. at 183). In this regard, on March 16, 2017, Plaintiff was contacted at 2:15AM to investigate a derailment near New Haven, Connecticut. She got dressed but realized she had taken a muscle relaxer for her back before going to bed. Plaintiff called her colleague and told him it would not be safe for her to drive. Plaintiff then received a call from Mr. Streany advising that she had been taken out of service until further notice and she was not to drive the company vehicle. Mr. Streany recalled the incident (Streany Aff. §18-9, 21):8 On March 16, 2017, in the aftermath of Winter Storm Stella, Ramos was on call as required in the normal course of her job duties. The only other Accident Investigator at the time, now Chief Investigator Richard Ferlauto, had recently finished a long shift to address service issues caused by the storm which required him to stay at a hotel in White Plains overnight. At or around 2:03AM, Streany learned from Operations Control Center about a train derailment that occurred near the New Haven Yard and called Ferlauto to relay this information. Given Ferlauto’s shift from the previous night and Ramos being geographically closer to the site, Streany and Ferlauto decided to assign Ramos to the accident and Ferlauto called her with the assignment. She accepted the assignment and Ferlauto emailed the Investigations team at 2:31AM confirming that she would be heading out shortly to respond. Roughly 40-45 minutes later, Ramos called Ferlauto back and said that she could not drive because she had taken pain medication earlier that evening and was feeling lightheaded. At 3:18AM, Ramos sent Ferlauto an email, copying Vonashek and Streany, writing “[n]ot able to leave yet due to pain meds I took prior to going to bed.” Streany then called Ramos to confirm the facts and concluded “that she may have been unfit for duty.” He directed her not to respond to the incident, relieved her of her duties and referred the matter to HR for further handling, including for any disciplinary action for violation of the Prescription Reporting Obligations. Plaintiff was directed to bring her medications to Metro-North’s Occupational Health Services (OHS) office and submit to a physical exam. She provided OHS with the three prescriptions she was taking: Flexeril (muscle relaxant), Ranitidine (acid reflux), and meloxicam (anti-inflammatory). On March 24, 2017, Plaintiff received a call from Metro-North’s HR Department advising her that she was terminated but could not disclose the reasons for her termination (Ramos Aff. 80-81, 86). Defendants assert that Plaintiff was aware of the responsibilities inherent in the Accident Investigator position and its “Safety Sensitive Employee” (SSE) designation. SSEs are employees “who perform service in job titles which the Company has determined involve tasks so fraught with risks of injury that even a momentary lapse of attention can have disastrous or irremediable consequences to the employee or others”9 (Policy, §IV.3). The Accident Investigator title provides that it is “subject to toxicological testing” (Defendants’ Ex.12, p.3). Those SSEs who fail to comply with company procedures are “subject to discipline, up to and including dismissal” (Policy §II.6.a.4). Metro-North’s medication use policy is contained in the Prescription and Over-the-Counter Medication for Safety Sensitive Employees pamphlet, which Defendants allege was available to all employees10 (Policy §II.6.a.1). The pamphlet includes a sample listing of common prescription drugs with adverse side effects, including Flexeril. Rule G of Metro-North’s Operating Rules provides “Employees are prohibited from reporting for service, going on duty or remaining on duty while under the influence of any prescription of over-the-counter drug or medication that can adversely affect their alertness, coordination, reaction, response or safety.”11 Defendants’ Ex. 16, p. 10. Rule G also requires that employees have authorization “prior to performing service while taking any drug or medication that is labeled with a warning related to adverse effects in any of the above areas.” Id. Plaintiff prepared materials for and lectured other employees on Metro-North’s reporting requirements for SSEs during a June 1, 2016 “Safety Focus Day”, a quarterly event on safetyrelated issues (Defendants’ Exs. 17-20). She also interviewed for the position of Assistant Director of Random Drug and Alcohol Testing which required an understanding of the Policy (Defendants’ Exs. 22-23). Expert Reports Plaintiff submits the affidavit of Barry Strauch, PhD, a transportation safety investigator with three decades of experience with the National Transportation Safety Board.12 In relevant part, Dr. Strauch avers (Strauch Report,
11, 17, 19, 23, 29, 54): [Defendants state] that at the time of the March 16, 2017, incident in question, “[Plaintiff] had not previously reported that she was taking this medication…In point of fact, in support of her November 8, 2016, application for Family and Medical Leave Act (FMLA) time off, her treating physician clearly indicated she was taking prescribed medication. The absence of…policies also allowed Mr. Streany to dispatch investigators to accidents based on his personal biases, again regardless of what he may have stated under oath. [Plaintiff] testified that she had never been launched in the middle of the night…an experience that would be consistent with a commuter railroad where the overwhelming majority of operations are conducted during work hours…Yet the one time he dispatched her late at night was to an accident site…at a considerable distance from her residence and…further from the site than that of another investigator. Unbeknownst to [Plaintiff]…Metro-North separated FMLA application processing from employee oversight and, as a result, her supervisors may have been unaware that her FMLA application indicated that she had been prescribed medication in response to back pain. Because FMLA Metro-North applications were reviewed by its own personnel, [Plaintiff] had every right to believe that her application for FMLA complied with the Railroad requirement. Undeniably, accident investigators should complete their reports in a timely manner. However, including this as a separate domain on the two PIPs given to [Plaintiff] implies that [she] was unique among Metro-North investigators…This was not the case. Despite documentation of [similar] tardiness by other investigators…[none were] issued a PIP. The first requirement [of Plaintiff's second PIP] altered [her] work schedule by moving it 30 minutes later than the schedule she had worked, with no justification for the change provided, and no allowance for her input on the change…this action of shifting her work hours to be more impacted by rush hour traffic than it had been with her previous schedule, one that had been acceptable to Metro North for well over a year, could only be explained as Mr. Streany using the PIP against her and not to assist her in improving her performance. [Dr. Strauch then concludes (id. at 54) [Mr. Streany's] multiple changing and misleading justifications for requiring [Plaintiff] to use a company vehicle and his manifest implementation of PIPs against her support the belief that he tried to make her work experience with Metro-North as difficult as possible in the hope that she would leave. Certainly, requiring that she…use a vehicle to commute to work, when she had no record of arriving late to an accident site and it was unnecessary for…performance of her job, suggests that he was discriminating against her in mandating it. Combined with his arbitrary extension…of the December PIP in violation of its documented interval and his unilateral alteration of both her work schedule and work location are consistent with this pattern of behavior further supporting evidence that he engaged in discriminatory behavior… In opposition, Plaintiff also submits the affidavit of a human resources expert, Marylou Ponzi Kay,13 who reached similar conclusions regarding Mr. Streany’s conduct in this case. In relevant part, she observed/concludes as follows (Kay Report,
