Kellman v. Metropolitan Transportation Authority (8 F. Supp. 3d 351, 2014)

United States District Court for the Southern District of New York 2014-03-26

Citations

Full opinion text

OPINION

DEBORAH A. BATTS, District Judge.

Plaintiff Nzingha M. Kellman (“Plaintiff’ or “Kellman”), an African-American female, together with eight African-American plaintiffs and one Hispanic plaintiff, all of whom are current or former employees of the Metropolitan Transportation Authority (“MTA”) Police Department (“MTA PD”), commenced this action against the MTA and four MTA executive officers (collectively, “Defendants”), alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law (“NYSHRL”), the New York City Human Rights Law (“NYCHRL”), and 42 U.S.C. §§ 1981 and 1983. Plaintiff maintains that MTA discriminated against her on the basis of her race and sex by denying her promotions and training, subjecting her to a hostile work environment, and engaging in a pattern or practice of racial discrimination, and retaliated against her for complaining to the MTA Office of Civil Rights (“OCR”) and the New York State Division of Human Rights (“SDHR”) about alleged discrimination. Defendants now move pursuant to Fed.R.Civ.P. 56 for Summary Judgment on each of Plaintiffs claims.

For the reasons set forth herein, Defendants’ Motion for Summary Judgment is granted in part, denied in part, and the Court reserves decision in part.

/. FACTUAL BACKGROUND

A. The Parties

Defendant MTA is a New York State public benefit corporation that provides public transportation services to the Greater New York City area. Defendant Elliot Sander served as the Executive Director and Chief Executive Officer of MTA from January 1, 2007 to May 7, 2009. Defendant William Morange was MTA Director of Security from July 2003 to December 2010. Defendant Kevin McConville was the Chief of MTA PD from October 2005 to January 2008. Defendant Terrance Culhane was an Assistant Deputy Chief of MTA PD from 2004 to July 2010.

Plaintiff Nzingha M. Kellman joined MTA PD as a police officer on July 6, 1999. (Pl.’s 56.1 Stmt. ¶ A.)

B. Plaintiffs Employment with MTA PD

Plaintiff was first assigned to the Communications Unit and in 2001 transferred to District 3. (Pl.’s 56.1 Stmt. ¶¶ C-D.) She alleges that she experienced race- and sex-based harassment during both assignments. (Id.) For instance, MTA PD members barred Kellman from going to the bathroom until male officers finished using the facilities, called her a “fucking bitch” and a “skell,” physically threatened her, wrote graffiti on her locker, and ordered her to deviate from her MTA-approved, pregnancy-related desk duty. (Id. ¶¶ EK; Defs.’ Resp. Pl.’s 56.1 Stmt. ¶ K.) MTA did not investigate Plaintiffs complaints of harassment. (Pl.’s 56.1 Stmt. ¶¶ G, EEE.)

In October 2003, Plaintiff was promoted to Sergeant, a nondiscretionary promotion resulting from her performance on the Sergeant’s examination. (Id. ¶ N.) She was assigned to District 5 — Grand Central in October 2003, where she was supervised by Deputy Inspector Robert Terrett and Inspector Thomas Dunn. (Id.) At Grand Central, Kellman was a patrol sergeant, and as such, was responsible for supervising patrol officers who reported from Grand Central. (Id.; Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 7R.)

C.Plaintiffs Requests for Training

MTA’s Training Bureau disseminates information about discretionary training courses to district commanding officers. (Pl.’s 56.1 Stmt. ¶ O.) Commanding officers may recommend particular members of their command for training courses, regardless of whether those members request the training. (Id.; Defs.’ Resp. Pl.’s 56.1 Stmt. ¶ O; Terrett Dep. 152:22-25.) Alternatively, MTA PD members may request that their supervisors assign them to particular training courses. (Defs.’ Resp. Pl.’s 56.1 Stmt. ¶?.) However, no operational orders announce training opportunities to MTA PD members, and Kellman typically learned about discretionary training courses only after viewing Personnel Orders assigning other MTA PD members to those courses. (PL’s 56.1 Stmt. 1HÍP-Q.) Defendants note that MTA PD members can look at other agencies’ websites to learn about training courses offered by those agencies, and that since 2007, MTA has emailed notices about trainings offered by the Department of Criminal Justice Services to MTA PD members. (Defs.’ Resp. Pl.’s 56.1 Stmt. ¶¶ O-P.)

Plaintiff repeatedly requested that Defendants consider her for all future training courses. (PL’s 56.1 Stmt. ¶¶ S-T.) In March 2004, Kellman requested assignment to Executive Protection Training after viewing a Personnel Order assigning others to the Training. (Id. ¶ EE.) Ter-rett, Plaintiffs direct supervisor, denied her request, stating that Executive Protection Training was specialized training given only to members of specialized units. (Kellman Decl. ¶ 15.) In June 2004, a Personnel Order stated that MTA sought abstracts for promotion to Detective Sergeant, particularly from members with Executive Protection Training. (Jeremias Decl. Ex. AA.) After seeing the Personnel Order, Plaintiff again requested assignment to Executive Protection Training, and Terrett told her, “You don’t need the training. It’s specialized.” (PL’s 56.1 Stmt. ¶ EE; Kellman Dep. 226:4-5.) On May 28, 2011, after seeing a Personnel Order assigning employees to a June 2, 2011 Executive Protection Training, Plaintiff emailed Captain John Berlingieri to request assignment to the Training. (Jeremias Decl. Ex. KKK, at P06326.) Berlingieri’s response, which he did not send until June 6, 2011, stated, “Should you see this class again please let me know and I will forward it up the chain of command for their consideration.” (Id. at P06324.)

According to the record, four of the sixteen employees who received Executive Protection Training after the 1998 formation of MTA PD were African American and two were women. (Barreto Dep. 92:2-16; Fuchs Deck Ex. 21; Jeremias Decl. Ex. T; Jeremias Decl. Ex. KKK, at P06335; Urquhart Dep. 176:4-8.) When they received the Training, all sixteen were detectives or assigned to ICTF, a unit specializing in counterterrorism. (Defs.’ 56.1 Stmt. ¶ 36; PL’s Resp. Defs.’ 56.1 Stmt. ¶ 36R; Defs.’ Reply PL’s Resp. Defs.’ 56.1 Stmt. ¶ 36; PL’s 56.1 Stmt. ¶ LL; Barreto Decl. ¶¶ 3, 5-6; Barreto Dep. 46:2-6, 91:7-92:10; Fuchs Reply Decl. Ex. 21; Jeremías Decl. Ex. T; Jere-mías Decl. Ex. KKK, at P06335; Urquhart Dep. 176:4-8.) Wilfredo Barreto, an Executive Protection Unit supervisor, affirms that when fulltime members of the Executive Protection Unit are unavailable to perform executive protection duties, other MTA PD detectives are asked to do executive protection duties. (Barreto Decl. ¶ 2; Barreto Dep. 81:10-24, 132:8-19.) A larger group of detectives and/or ICTF members provides another type of executive protection, site security at high-risk events. (Barreto Reply Decl. ¶ 2; Barreto Dep. 130:9-132:7.) MTA PD began providing the Training to ICTF members in 2004, allegedly so that they would be better prepared to perform executive protection duties. (Barreto Reply Decl. ¶ 5.) In 2008, MTA PD began providing the Training to non-ICTF detectives so that they too would be better able to perform executive protection duties. (Barreto Reply Dec. ¶ 5; Barreto Dep. 124:9-19, 130:21-132:19.)

In July 2005, after viewing a Personnel Order assigning members to Land Transportation Antiterrorism Training, Plaintiff asked to attend the Training. (Pl.’s 56.1 Stmt. ¶ S; Jeremías Decl. Ex. U.) Her request was denied. (PL’s 56.1 Stmt. ¶ S.) Defendants allege that they denied the Training because it was not relevant to Kellman’s duties or within MTA’s needs. (Defs.’ 56.1 Stmt. ¶ 40.) Terrett, however, states that he denied Plaintiffs request because “it would have created a scheduling problem, leaving [Grand Central] with one less Patrol Sergeant than was normally scheduled.” (Terrett Reply Decl. ¶ 5.) Terrett did not supervise any of the seven members selected for the training. (Id.) Of those seven, one was an African American man and one was an African American woman. (Defs.’ 56.1 Stmt. ¶ 37.)

Also in 2005, Plaintiff requested assignment to Incident Command Systems (“ICS”) Training, and her request was denied. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 38R.) The Parties dispute whether Plaintiff made her request before or after the publication of a Personnel Order assigning three MTA PD members to an October 2005 ICS Training. (Kellman Decl. ¶ 18; Terrett Decl. ¶ 6.) Defendants initially alleged that Plaintiff was denied ICS Training because the Training was not required for performance of her duties and was not within MTA’s needs. (Defs.’ 56.1 Stmt. ¶ 40.) In his Reply Declaration, however, Terrett alleges that he denied Plaintiff the Training because Plaintiff requested it too late for him to arrange for her to attend. (Terrett Decl. ¶ 6; see Jeremías Decl. Ex. W.)

Of the three members assigned to the October 2005 ICS Training, two were Caucasian patrol sergeants and one was an African American lieutenant. (Defs.’ 56.1 Stmt. ¶ 38; PL’s Resp. Defs.’ 56.1 Stmt. ¶ 38R.) One of the assigned sergeants, Rosalie Grascia, also worked in District 5— Grand Central and was supervised by Ter-rett. (Kellman Deck ¶ 18.) The assigned lieutenant, co-plaintiff Bryan Henry, attended the October 2005 Training in order to meet MTA’s requirement that all lieutenants take ICS 300 Training. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 38R; Defs.’ Reply PL’s Resp. Defs.’ 56.1 Stmt. ¶38.) All seven sergeants who attended an ICS Training course between March 2005 and October 2006 were Caucasian, and only one was a woman. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 38R; Jeremías Decl. Ex. W.)

Plaintiff requested assignment to Plainclothes Tactical Training in July 2006. (PL’s 56.1 Stmt. ¶ T.) Dunn denied Plaintiffs request, writing, “[A]t this time, plain clothes training is being offered to police officers.” (Jeremías Decl. Ex. V, at P04276.) In 2005 and 2006, Plainclothes Tactical Training was given exclusively to police officers, at least eleven of whom were African American and at least seven of whom were female. (Defs.’ 56.1 Stmt. ¶ 39.) One detective sergeant, three detective lieutenants, and one sergeant were assigned to Plainclothes Training in 2009. (Jeremías Decl. Ex. V, at D00042175, D00040245.) Although Plaintiff attended a training called Policy Review-Plainclothes Encounters in June 2009, she affirms that she continues to be denied access to Plainclothes Tactical Training. (Defs.’ Resp. Pl.’s 56.1 Stmt. ¶ T; Fuchs Decl. Ex. 19, at D00042898; Reliman Decl. ¶ 19.)

D. Plaintiffs June 2004 Application for Promotion to Detective Sergeant

In June 2004, Defendants issued a Personnel Order requesting abstracts for promotion to Detective Sergeant with assignment to ICTF. (Jeremías Decl. Ex. AA.) Although the Personnel Order explicitly sought individuals with Executive Protection Training, MTA interviewed two individuals who did not have that Training, Reliman and Daniel Eivazi. (Pl.’s 56.1 Stmt. ¶ RR; Jeremías Decl. Ex. AA.) In July 2004, MTA promoted three Caucasian men, Eivazi, Thomas Farney, and Lawrence Cudia, to the position. (Jeremías Decl. Ex. Y.)

Defendants allege that Farney, Cudia, and Eivazi were chosen over Plaintiff because they had been sergeants for longer and because they had more investigative or supervisory experience. (Defs.’ 56.1 Stmt. ¶ 42.) As compared to Eellman’s eight months as a sergeant, Farney, Cudia, and Eivazi had been sergeants for fourteen months, at least three years, and fourteen months, respectively. (Jeremías Decl. Ex. Z, at D00007397; Jeremías Decl. Ex. DD, at D00024552, D00024557, D00024566, D00024571, D00024575, D00024580, D00024593, D00024598; Reliman Decl. ¶ 11.) Farney and Cudia gained investigative experience during their assignment to ICTF, with Farney gaining further experience from his work with the Applicant Investigations Unit. (Defs.’ 56.1 Stmt. ¶ 42; Pl.’s Resp. Defs.’ 56.1 Stmt. T42R(bXc); Defs.’ Reply Pl.’s 56.1 Stmt. ¶ 42.) Farney and Cudia both mentioned their investigative experience at their interviews, and most interviewers remarked on that experience. Jeremías Decl. Ex. CC, at D00024405-06, D00024409-10, D00024416, D00024419, D00024428, D00024434, D00024437, D00024446; Jeremías Decl. Ex. DD, at D00024458, D00024576, D00024585.) In contrast, in response to the question, “What value can you bring to this unit?”, neither Eivazi nor Reliman mentioned investigative experience. (Jeremías Decl. Ex. X, at D00007422, D00007431, D00007440, D00007449; Jere-mías Decl. Ex. BB, at D00024508, D00024517, D00024526, D00024535.) Interviewer Ernest Pucillo wrote that Plaintiff “[h]as limited investigative experience.” (Jeremías Decl. Ex. X, at D00007455.) Though Eivazi had little investigative background, he had six months more supervisory experience than Reliman. (Id. at D00007421; Jeremías Decl. Ex. Z, at D00007397; Jeremías Decl. Ex. BB, at D00024516.) Pucillo wrote that Eivazi “[h]as good supervisory background” (Jeremías Decl. Ex. BB, at D00024532), and interviewer James Flanagan wrote that Reliman “has little time as a spvr” (Jeremías Decl. Ex. X, at D00007428).

Plaintiff argues that the Personnel Order did not list supervisory and investigatory experience as qualifications, and instead listed, inter alia, “[knowledge in terrorist related computer investigations,” “[ajbility to act as liaison with federal, state, and local law enforcement agencies,” “[kjnowledge of databases for statistical analysis of intelligence,” and “[d]evelop interagency coordination for emergencies with other city, state, and federal agencies.” (Jeremías Decl. Ex. AA.) Reliman noted proficiency in Microsoft Word, Excel, and Powerpoint on her application and mentioned her computer skills and relationships with other law enforcement agencies at the interview. (Jeremías Decl. Ex. X, at D00007415, D00007440.) However, none of the interviewers mentioned these skills in their interview notes, even when reviewing Plaintiff positively. {Id. at D00007428, D00007437, D00007446, D00007455.) Plaintiff alleges that, among other weaknesses, the promoted candidates had weaker computer skills and relationships with other agencies than she did. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 42R.) In addition, one of the interviewers reviewed Reliman more positively than Eivazi. (Crawford Dep. 88:20-89:1.)

E. Plaintiffs July 2004 Application for Promotion to Detective Sergeant

In July 2004, Defendants requested abstracts for promotion to Detective Sergeant and assignment to the Detective Division. (Jeremías Decl. Ex. FF.) Stephen Conner interviewed Reliman and Sergeants Dirk Jordan, Alexander Lindsey, Lee Dittrich, and Andre Csizmadia for the position. (Pl.’s 56.1 Stmt. 1fflPP-QQ) Although two Detective Sergeant positions were available, only Jordan, an African American man, was promoted. {Id. ¶ PP.) Conner later stated that he did not fill the second slot because of a “lack of investigative experience for those candidates that were not selected.” (Jeremías Decl. Ex. GGG, at D00013001.) Conner’s interview notes on Reliman state, “Needs more ‘supervisory investigative’ knowledge that she doesn’t have now. In time may deserve consideration but is not ready yet. Not recommended.” (Jeremías Decl. Ex. EE, at D00013002.)

Plaintiff, who does not argue that she was more qualified for the position than Jordan, argues that she was more qualified than the other interviewees, all Caucasian men, and points out that Conner’s interview notes include positive comments about her. (Defs.’ 56.1 Stmt. ¶ 45; PL’s 56.1 Stmt. ¶ OO-QQ.) Of the fourteen detectives whom Conner promoted over his career, eleven were Caucasian men and one was a woman. (PL’s 56.1 Stmt. ¶ RR.)

F. Plaintiffs October 2005 Application for Promotion to Detective Sergeant

In October 2005, Defendants requested abstracts for promotion to Detective Sergeant. (Jeremías Decl. Ex. PP.) The Personnel Order stated that Defendants sought individuals with, inter alia, detective experience and five years law enforcement experience, and listed the Criminal Investigators Course (“CIC Training”) as a requirement. {Id.) Because Reliman had never requested or received CIC Training, her supervisor, Terrett, disapproved her abstract, and she was not interviewed for the position. (PL’s 56.1 Stmt. ¶XX; PL’s Resp. Defs.’ 56.1 Stmt. ¶ 46R n. 37.) Defendants interviewed Sergeant Joseph Johnston and Detective Andrew Roderick, both Caucasian men, for the position, and promoted Roderick. (PL’s 56.1 Stmt. IfilXX, AAA.)

Plaintiff alleges that prior to submitting her abstract, several officers told her that the October 2005 Detective Sergeant position and the Personnel Order qualifications were designed specifically for Roderick, who had only five months supervisory experience. (PL’s 56.1 Stmt. ¶ ZZ; Jeremías Decl. Ex. H, at D00012962.) Before October 2005, some Caucasian members promoted to Detective Sergeant did not have detective experience or CIC Training, and Plaintiff alleges that Johnston had never received CIC Training. (PL’s 56.1 Stmt. ¶¶ AAA-CCC.) However, Johnston attended the Fairfield County Detective Conference, which, according to Conner, was one of several equivalent CIC Trainings to which MTA PD sent its members. (Fuchs Reply Decl. Ex. 10; Conner Dep. 125:16-126:9.) Plaintiff argues that she too attended a training that covered the basic principles of CIC Training, the Sex Crimes and Child Abuse Investigators Course. (Pl.’s 56.1 Stmt. ¶ WW.)

G. Plaintiffs Complaint to MTA’s Office of Civil Rights

On or around November 10, 2005, Plaintiff scheduled an appointment with MTA’s OCR. (Pl.’s 56.1 Stmt. ¶ GGG; Jeremías Decl. Ex. H, at D00001213-14.) After an OCR employee informed Terrett of the scheduled meeting, Terrett allegedly called Kellman and threatened to transfer her from Grand Central to the Communications Unit. (Pl.’s 56.1 Stmt. ¶ GGG; Jere-mías Decl. Ex. H, at D00012964, D00001213-14.) Had Plaintiff been transferred, she would have lost her supervisory responsibilities and would not have been able to make arrests or conduct investigations. (Pl.’s 56.1 Stmt. ¶ GGG.) On November 14, 2005, Plaintiff filed a Complaint of discrimination with OCR. (Id.; Jeremías Decl. Ex. H, at D00012960-61, D00012966-68.) On November 23, 2005, Plaintiff submitted additional allegations of discrimination to OCR. (Jeremías Decl. Ex. H, at D00012962-65.)

A citywide transit strike occurred from December 20 to December 22, 2005, during which time MTA PD advised its members that no one would be granted unscheduled days off. (Defs.’ 56.1 Stmt. ¶ 52; Timothy Williams & Sewell Chan, “State Mediators’ Plan Clears Way to Resolve 60-Hour Ordeal,” N.Y. Times, Dec. 22, 2005, http:// www.nytimes.com/2005/12/22/nyregion/22 cnd-strike.html.) Defendants argue that, notwithstanding this directive, Plaintiff tricked co-plaintiff Henry into approving two days off during the strike. (Defs.’ 56.1 Stmt. ¶ 52; Dunn Dep. 240:11-20.) Plaintiff contends that she made her request after the strike ended. (Jeremías Deck Ex. I, at P04296; Kellman Decl. ¶ 22; Kellman Dep. 200:13-24; 207:9-13.) Henry likewise affirms that there was no moratorium on vacation time when Kellman made her request, and does not state that she tricked him. (Henry Dep. 339:4-340:24.)

After discovering that Henry had authorized the days off, Dunn instructed him to inform Kellman that she could not take the vacation time. (Dunn Dep. 242:21-22.) According to Henry, Dunn’s only stated rationale for rescinding Plaintiffs vacation time was that approving vacation time “was Lieutenant [Diane] Nash’s job.” (Henry Dep. 339:6-8, 340:2-7.) Dunn agrees that Nash, and not Henry, was “in charge of granting time off,” but affirms that the primary reason Henry should not have granted Plaintiffs request was because the requested days off were during the strike. (Dunn Dep. 240:7-9, 241:24-242:4.) Kellman did not respond to Henry’s calls to her cell phone and home phone, allegedly because she was in the middle of her commute home and her cell phone had died. (Kellman Dep. 210:16-211:1.)

After Henry told Dunn that he could not reach Plaintiff, Dunn either ordered or told Henry that “one of the options [wa]s” to ask the Delaware State Police to go to Plaintiffs house and “locate” her. (Defs.’ 56.1 Stmt. ¶ 52; Dunn Dep. 243:15-20; Henry Dep. 339:15-16.) Henry relayed the order to the Delaware State Police, who thereafter went to Plaintiffs house and searched her property with police dogs. (Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 52R.) A Delaware Canine Officer allegedly told Kellman that MTA PD had told him that she was sick and MTA PD was unable to contact her. (Kellman Deck ¶ 22.) Plaintiff, however, was not sick. (Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 52R.) Moreover, Plaintiff argues that the situation did not require such urgent action, because the vacation day that Henry approved would not have occurred until a few days later. (Id.) Plaintiff subsequently spoke to Nash, who authorized Plaintiff to take the same vacation day that Dunn had rescinded. (Henry Dep. 340:6-7, 340:22-24; Kellman Dep. 205:21-206:6.)

On May 23, 2006, Dunn issued Plaintiff a Letter of Instruction (“LOI”) for failing to ensure that her supervisees prepared District Prisoner Log entries properly during a patrol investigation on December 9, 2005. (Fuchs Decl. Ex. 7.) The LOI was precipitated by an investigation into a civilian’s allegations of MTA PD misconduct. (Id.) Plaintiff alleges that it was not her responsibility to make entries in the prisoner log. (Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 18R.)

H. Plaintiffs Complaints to the State Division of Human Rights

On July 11, 2006, Plaintiff filed a Complaint alleging race and sex discrimination with the SDHR. (Jeremías Deck Ex. I.)

On August 1, 2006, Terrett asked Plaintiff to explain why she had not completed a May 2006 Activity Report, and forwarded her a June 7, 2006 email, allegedly sent by Sergeant Omeeta Lakeram to Plaintiff, advising her to complete the May Report. (Pl-’s Resp. Defs.’ 56.1 Stmt. ¶ 21R.) Plaintiff affirms that she does not recall seeing Lakeram’s email before August 1. (Kell-man Dep. 118:3-7.) On September 15, 2006, Kellman submitted a memorandum to Terrett stating, “I was never instructed by Sgt. Lakeram to prepare any monthly activity reports....” (Fuchs Deck Ex. 11.) On October 14, 2006, Plaintiff received and signed a Notice of Intent to Discipline for “generating a false and misleading report to a Command Staff Member.” (Fuchs Deck Ex. 8.) Plaintiff alleges that she signed the Notice because Lieutenant Christopher Salotto told her that if she did not, she would be fired. (Pb’s Resp. Defs.’ 56.1 Stmt. ¶ 23R.) After going through the Collective Bargaining Agreement (“CBA”)’s grievance and arbitration procedure, on October 28, 2009 Plaintiff signed a settlement agreement in which she “admitted] to misinforming ... Terrett concerning monthly activity reports.” (Fuchs Deck Ex. 10.)

At some point on or before October 9, 2006, Plaintiff requested training from Terrett and Dunn, who advised her to request a meeting regarding training with Assistant Deputy Chief Sean McLaughlin. (Pl.’s 56.1 Stmt. ¶ NNN.) Accordingly, on October 9, 2006, Plaintiff requested that Terrett set up a meeting between Plaintiff and McLaughlin regarding the lack of training opportunities afforded to her. (Fuchs Deck Ex. 15.) On October 12, 2006, Dunn sent Kellman an email stating that the requested meeting would occur on October 16, 2006 at 7:30 A.M. (Defs.’ 56.1 Stmt. ¶ 27.) However, because Plaintiff did not see the email, she did not appear at the meeting. (Fuchs Deck Ex. 16.) On October 30, 2006, Defendants issued an LOI instructing Plaintiff to review timely all email sent to her by supervisors. (Fuchs Deck Ex. 9.) Plaintiff notes that the meeting was scheduled for a time when Dunn and MTA PD knew that she would be unavailable due to her childcare obligations. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 27R; Jeremías Decl. Ex. M.)

On December 18, 2006, Plaintiff filed a second SDHR Complaint alleging further discrimination and retaliation. (Pl.’s 56. Stmt. ¶ 000.) Plaintiff alleges that after she filed her SDHR Complaints her requests for specific training were denied; in particular, she cites the May 2011 denial of her request for Executive Protection Training. (Id. ¶ PPP.)

II. DISCUSSION

A. Legal Standard for Summary Judgment

A court should grant summary judgment when there is “no genuine dispute as to any material fact” and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a); see also Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.2005). Genuine issues of material fact cannot be created by conclusory allegations. Victor v. Milicevic, 361 Fed.Appx. 212, 214 (2d Cir.2010). Summary judgment is appropriate only when, after drawing all reasonable inferences in favor of a non-mov-ant, no reasonable juror could find in favor of that party. Melendez v. Mitchell, 394 Fed.Appx. 739, 740 (2d Cir.2010).

In assessing when summary judgment should be granted, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Id. (citation omitted). The non-movant may not rely upon speculation or conjecture to overcome a motion for summary judgment. Burgess v. Fairport Cent. Sch. Dist., 371 Fed.Appx. 140, 141 (2d Cir.2010). Instead, when the moving party has documented particular facts in the record, “the opposing party must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact.” FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir.2010). Establishing such evidence requires going beyond the allegations of the pleadings, as the moment has arrived “to put up or shut up.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (citation omitted). Thus, unsupported allegations in the pleadings cannot create a material issue of fact. Id.

B. Disparate Treatment Based on Race and Sex

1. Title VII and NYSHRL Claims

Courts in this Circuit analyze Title VII and NYSHRL claims of employment discrimination according to the three-stage, burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Simmons v. Akin Gump Strauss Hauer & Feld, LLP, 508 Fed.Appx. 10, 12 (2d Cir.2013). Under McDonnell Douglas, a plaintiff bears the initial, de minimis burden of establishing a prima facie case of discrimination. Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir.2008). To make out a prima facie case, a plaintiff must demonstrate, through direct or circumstantial evidence, that: (1) he is a member of a protected class; (2) he was qualified for the position; (3) he suffered from an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir.2008). A plaintiff may raise such an inference by showing that his employer subjected him to disparate treatment, that is, treated him less favorably than a similarly situated employee outside of his protected group. Ruiz v. Cnty. of Rockland, 609 F.3d 486, 493 (2d Cir.2010).

A plaintiff who makes out a prima fa-cie case establishes a presumption of discrimination, at which point the burden of production shifts to the defendant to articulate a “legitimate, non-discriminatory reason” for the challenged conduct. Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir.2005) (citation omitted). If the defendant produces such a reason, the plaintiff must then, without the benefit of the presumption of discrimination, “raise[] sufficient evidence upon which a reasonable jury could conclude by a preponderance of the evidence that the [adverse employment action] was based, at least in part,” on discrimination. Holcomb, 521 F.3d at 141. Typically, plaintiffs who lack direct evidence of discrimination argue that the employer’s stated reason for the challenged conduct is pre-textual. Id. “[I]n many cases, a showing of pretext, when combined with a prima facie ease of discrimination, will be enough to permit a rational finder of fact to decide that the decision was motivated by an improper motive.” Id. However, a showing of pretext is not required. Id. at 141-42. Instead, a plaintiff “alleging that an employment decision was motivated both by legitimate and illegitimate reasons may establish that the impermissible factor was a motivating factor, without proving that the employer’s proffered explanation was not some part of the employer’s motivation.” Id. at 142.

Title VII’s statute of limitations bars claims based on events occurring more than 300 days prior to filing a charge of discrimination with a state or local employment agency. 42 U.S.C. § 2000e-5(e)(l). Plaintiff filed an administrative complaint with the SDHR on July 11, 2006. (Fuchs Decl. Ex. 2.) Accordingly, only those incidents that occurred on or after September 14, 2005 are actionable under Title VII. Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir.2004) (noting that Title VII precludes recovery for discrete discriminatory acts that occurred outside the statutory time period even if other acts occurred within the time period). Discrimination claims under the NYSHRL are subject to a three-year statute of limitations. Lange v. Town of Monroe, 213 F.Supp.2d 411, 418 (S.D.N.Y.2002). As this action was brought on May 4, 2007, only those incidents occurring on or after May 4, 2004 are actionable under the NYSHRL. Nonetheless, earlier incidents may be cited as background evidence in support of a timely Title VII or NYSHRL claim. Anderson v. Nassau Cnty. Dep’t of Corr., 558 F.Supp.2d 283, 299 (E.D.N.Y.2008).

Here, Kellman alleges that MTA violated Title VII and the NYSHRL by denying her requests for training and applications for Detective Sergeant on the bases of her race and sex.

Plaintiffs training-related claims rest on Defendants’ denial of four particular training courses: Executive Protection Training, Land Transportation Antiterrorism Training, Incident Command System Training, and Plainclothes Tactical Training. (Am. Compl. ¶¶ 149-50.) First, Plaintiff claims that MTA discriminated on the bases of race and sex when it denied her three requests for Executive Protection Training. Assuming arguendo that Plaintiff set forth a prima facie case of discrimination as to her two requests for Executive Protection Training in 2004, Defendants have stated a legitimate, nondiscriminatory reason for their decision: Executive Protection Training was specialized training unrelated to Plaintiffs duties as a patrol sergeant, and at the time of her 2004 requests, MTA PD was providing the Training only to members of specialized units such as ICTF. (Defs.’ 56.1 Stmt. ¶ 40; Kellman Decl. ¶ 15; Kellman Dep. 226:4-5.)

Plaintiff has failed to raise evidence sufficient for a reasonable fact-finder to find that Defendants’ rationale is pretextual. The record reflects that the four individuals assigned to Executive Protection Training in 2004 were all ICTF members at the time they received the training. (Defs.’ 56.1 Stmt. ¶36; Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 36R; Defs.’ Reply Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 36; Pl.’s 56.1 Stmt. ¶ LL; Barreto Decl. ¶ 5; Fuchs Reply Decl. Ex. 21; Jeremías Decl. Ex. T.) Barreto’s Reply Declaration indicates that MTA PD relied on ICTF members to perform executive protection duties and provided them with Executive Protection Training so that they would be better able to perform those duties. (Barreto Decl. ¶¶ 2, 5.) Although the four 2004 trainees never performed executive protection duties after receiving the Training (PL’s 56.1 Stmt. ¶ GG; Defs.’ Resp. Pl.’s 56.1 Stmt. ¶ GG; Barreto Dep. 130:17-20), this fact does not suggest that Defendants’ rationale is pretextual. There is nothing perplexing about MTA PD’s decision to give Executive Protection Training to individuals assigned to a unit whose members sometimes performed executive protection duties (Barreto Decl. ¶¶ 2, 5), even if the chance of being called on to perform those duties was slight.

Between 2008 and 2011, multiple detectives received Executive Protection Training even though they were not ICTF members. (Barreto Decl. ¶ 5; Jeremias Decl. Ex. T; Jeremias Decl. Ex. KKK, at P06335.) These training assignments, however, are consistent with Barreto’s deposition testimony, in which he explains that because some non-ICTF detectives performed executive protection duties, MTA PD decided in 2008 to begin assigning them to Executive Protection Training. (Barreto Dep. 124:9-19, 130:21-132:19; see also Barreto Reply Decl. ¶ 5.) Plaintiff does not allege that she ever carried out the type of executive protection duties performed by detectives. (See PL’s 56.1 Stmt.; Barreto Reply Decl. ¶¶ 2, 5.) Moreover, Barreto affirms that patrol sergeants and uniformed police officers do not receive Executive Protection Training (Bar-reto Reply Decl. ¶ 7), an affirmation supported by the remainder of the record. (See Defs.’ 56.1 Stmt. ¶36; PL’s Resp. Defs.’ 56.1 Stmt. ¶ 36R; Defs.’ Reply PL’s Resp. Defs.’ 56.1 Stmt. ¶36; PL’s 56.1 Stmt. ¶ LL; Barreto Decl. ¶¶ 6-7; Barreto Dep. 46:2-6, 91:7-92:10; Fuchs Reply Decl. Ex. 21; Jeremias Decl. Ex. T; Jere-mias Decl. Ex. KKK, at P06335; Urquhart Dep. 176:4-8.)

The submitted evidence does not permit a reasonable jury to find by a preponderance of the evidence that MTA’s decision was motivated both by legitimate factors and by race or sex. Four of the sixteen recipients of Executive Protection Training after 1997 were African American and two were women. (Fuchs Decl. Ex. 21; Jere-mias Decl. Ex. T; Jeremias Decl. Ex. KKK, at P06335; Barreto Dep. 92:2-16; Urquhart Dep. 176:4-8.) Plaintiff emphasizes that a majority of the Executive Protection Training attendees were Caucasian. (PL’s Am. Mem. Law Opp’n Defs.’ Mot. Summ. J. (“PL’s Opp’n”) 13.) However, these data are not sufficient on their own to convince a reasonable jury that the denials of Executive Protection Training in 2004 were based, even in part, on discrimination.

Defendants do not address specifically Plaintiffs 2011 request for Executive Protection Training, instead claiming generally that Plaintiffs requests for the Training were denied because the course did not relate to her duties as a patrol sergeant and MTA PD had no need to assign her to it. (Defs.’ Rev. Mem. Law Supp. Summ. J. (“Defs.’ Mem.”) 8; Defs.’ Rev. Reply Mem. Law Supp. Mot. Summ. J. (“Defs.’ Reply”) 5.) However, Berlingieri’s June 6, 2011 email does not indicate that these factors were at play in the denial of her 2011 request. (Jeremias Decl. Ex. KKK, at P06324.) The email shows that Berlingieri failed to respond to Plaintiffs request until after the Training had finished and gives no substantive reason for this failure. (Id.) Berlingieri told Plaintiff that if she submitted a new request for Executive Protection Training, he would “forward it up the chain of command for their consideration.” (Id.) Had Berlingieri forwarded Plaintiffs 2011 request up the Chain of Command, a superior officer may well have found that the Training was unrelated to Plaintiffs duties and denied her request. The record before the Court, however, raises a material issue of fact as to whether Defendants’ rationale is false with regard to Plaintiffs 2011 request.

Here, the possibility that Defendants’ rationale is pretextual, in combination with the remainder of the record, could not convince a reasonable jury that the denial of Plaintiffs 2011 request was based, even in part, on discrimination. See Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir.2001) (“[T]he issue as to the sufficiency of the evidence is whether the record as a whole, including whatever reasonable inference the jury could draw from the proffer of a false reason for the discharge, permitted the required ultimate finding of discrimination.”). The data regarding the race and sex of the sixteen recipients of Executive Protection Training, in addition to the possibility of pretext and the remainder of the record, could not meet the preponderance of the evidence standard. (See Pl.’s Opp’n 13.)

Next, Plaintiff alleges that Defendants denied her July 2005 request to attend Land Transportation Antiterrorism Training on the basis of her race and sex. Assuming that Plaintiff has set forth a prima facie case of discrimination, Defendants have stated legitimate, nondiscriminatory reasons for the denial: the Training was not required for Plaintiffs duties and MTA had no need to assign her to it. (Defs.’ 56.1 Stmt. ¶ 40.) However, Plaintiff has raised a material issue of fact as to whether Defendants’ rationales are pretex-tual. In his Reply Declaration, Terrett states that he denied Plaintiffs request not for the reasons Defendants state but because Plaintiffs attendance at the Training “would have created a scheduling problem.” (Terrett Reply Decl. ¶ 5.) These “shifting and somewhat inconsistent explanations” are “discrepancies [from which] a reasonable juror could infer that the explanations given by [Defendants] were pre-textual.” Kwan v. Andalex Group LLC, 737 F.3d 834, 846-47 (2d Cir.2013) (citation omitted).

However, even taking into account this evidence of pretext, no reasonable juror could find that the denial of Plaintiffs July 2005 request was based on her race or sex. The record shows that MTA members who were assigned to a training had either requested that training from their supervisors or been recommended for assignment to that training by one of their commanding officers. (Pl.’s 56.1 Stmt. ¶ O; Defs.’ Resp. PL’s 56.1 Stmt. ¶¶ O-P; Terrett Dep. 152:22-25, 158:9-17.) Ter-rett, Plaintiffs supervisor and commanding officer, affirms that he did not supervise any of the seven members assigned to Land Transportation Antiterrorism Training in July 2005, and the record does not indicate that Plaintiffs other supervisor and commanding officer, Dunn, supervised them or was their commanding officer. (PL’s 56.1 Stmt. ¶ N; Terrett Reply Decl. ¶ 5.) The record, then, indicates that neither Terrett nor Dunn recommended that the seven members receive the Training or granted their requests for the Training. Nor, according to the record, was Plaintiffs request for the Training denied by the same commanding officers who recommended or granted the requests of the seven members. In these circumstances, the data about the race and sex of the seven individuals, in combination with the evidence of pretext and the rest of the record, could not meet the preponderance of the evidence standard.

Next, Plaintiff alleges that Defendants discriminated on the bases of Plaintiffs race and sex when they denied her request for Incident Command System (“ICS”) Training. The “denial of professional training opportunities may constitute an adverse employment action, but only where an employee can show ‘material harm’ from the denial, ‘such as a failure to promote or a loss of career advancement opportunities.’ ” Trachtenberg v. Dep’t of Educ. of N.Y.C., 937 F.Supp.2d 460, 468 (S.D.N.Y.2013) (citation omitted). Here, Plaintiff has not raised an issue of material fact as to whether she suffered material harm. Plaintiff does not allege that the denial of ICS Training influenced Defendants’ denial of her applications for promotion to Detective Sergeant in October 2005 or to Lieutenant in 2007. (PL’s Opp’n 12-13.) The only training mentioned in the Personnel Order for the 2005 Detective Sergeant position was the Criminal Investigators Course (Jeremías Decl. Ex. PP), and the record does not indicate that training was relevant to the 2007 Lieutenant promotion process. There is no reason to believe that the denial of ICS Training affected Plaintiffs career advancement or caused any other material harm.

Plaintiff also alleges that Defendants denied her July 2006 request for Plainclothes Tactical Training on the bases of her race and sex. Assuming that Plaintiff has set forth a prima facie case of discrimination, Defendants state a legitimate, nondiscriminatory reason for the denial: at the time of her request, Plainclothes Training was offered only to police officers. (Defs.’ 56.1 Stmt. ¶ 39.) Plaintiff has failed to raise evidence sufficient for a reasonable fact-finder to find this rationale pretextual. Dunn informed Plaintiff of this rationale in the email in which he denied her request, and indeed, the only individuals assigned to Plainclothes Training in 2005 and 2006 were police officers. (Id.; Jeremías Decl. Ex. V, at P04276.) Although four individuals above the rank of police officer were assigned to Plainclothes Training in 2009, this does not call into question Defendants’ rationale. (Jeremías Decl. Ex. V, at D00042175, D00040245.) Dunn’s email stated, “[A]t this time, plain clothes training is being offered to police officers.” (Id. at P04276 (emphasis added).)

Moreover, the submitted evidence does not permit a reasonable jury to find that MTA’s decision was motivated both by legitimate factors and by race or sex. The only sergeant who attended Plainclothes Training, assigned in April 2009, was stationed in a different district than Plaintiff and appears to have had different supervisors and commanding officers at the time he was assigned to the Training. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 7R; Jeremías Decl. Ex. V, at D00040245.) Data on the race and sex of the individuals assigned to Plainclothes Training is insufficient, in the context of this record, to meet the preponderance of the evidence standard.

Next, Plaintiff alleges that Defendants denied her June 2004 application for promotion to Detective Sergeant on the bases of her race and sex. Assuming arguendo that Plaintiff has established a prima facie case of discrimination, Defendants have set forth legitimate, nondiscriminatory rationales for their promotion decision: Farney, Cudia, and Eivazi had been sergeants for longer than Plaintiff and had more investigative or supervisory experience than Plaintiff. (Defs.’ 56.1 Stmt. ¶ 42.) Plaintiff has failed to raise a material issue of fact as to whether these rationales are pretextual. The evidence submitted shows that Plaintiff indeed had less investigatory experience than Farney and Cudia and less supervisory experience than Eivazi, and had been a sergeant for a shorter period of time than all three. (Id.; Pl.’s Resp. Defs.’ 56.1 Stmt. ¶42R(b)-(c); Defs.’ Reply Pl.’s 56.1 Stmt. ¶ 42; Jeremí-as Decl. Ex. X, at D00007421-22, D00007428, D00007431, D00007437, D00007440, D00007446, D00007449, D00007455; Jeremías Decl. Ex. Z, at D00007397; Jeremías Decl. Ex. BB, at D00024508, D00024514, D00024516-17, D00024523, D00024526, D00024532, D00024535, D00024541; Jeremías Decl. Ex. CC, at D00024405-06, D00024409-10, D00024416, D00024419, D00024428, D00024434, D00024437, D00024446; Jere-mías Decl. Ex. DD, at D00024458, D00024552, D00024557, D00024566, D00024571, D00024575-76, D00024580, D00024585, D00024593, D00024598; Kell-man Decl. ¶ 11.) The interviewers’ write-ups highlighted Farney and Cudia’s investigative experience, Eivazi’s supervisory experience, and Plaintiffs shortcomings in both areas. (Jeremías Decl. Ex. X, at D00007428, D00007455; Jeremías Decl. Ex. BB, at D00024532; Jeremías Decl. Ex. CC, at D00024405-06, D00024409-10, D00024416, D00024419, D00024428, D00024434, D00024437, D00024446; Jere-mías Decl. Ex. DD, at D00024458, D00024576, D00024585.)

Plaintiff argues that investigatory experience and supervisory experience were not listed as “preferred qualifications” on the June 17, 2004 Personnel Order, and claims that she was more qualified in the areas listed in the Order than the three selected sergeants. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 42R.) In fact, the Personnel Order did highlight investigatory and supervisory skills as desired qualifications. (See Jeremías Decl. Ex. AA (listing “[a]bility to supervise the assessment of infrastructure of MTA facilities” and “[k]nowledge in terrorist related computer investigations” as relevant qualifications).) Although Plaintiff may have had some of the other listed qualifications, a plaintiff who “seeks to prevent summary judgment on the strength of a discrepancy in qualifications ignored by an employer” must have “credentials ... 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.’ ” Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 103 (2d Cir.2001) (citation omitted). Even viewing the facts in the light most favorable to Kellman, her credentials do not meet this high standard.

Nor does the evidence permit a reasonable juror to find that MTA’s decision was motivated both by legitimate factors and by race or sex. Although Plaintiffs application was strong in certain areas, these strengths do not satisfy her burden, even when viewed in combination with the statistical evidence of racial disparities in advancement at MTA PD and the fact that all three promoted individuals were Caucasian men. (See PL’s Resp. Defs.’ 56.1 Stmt. ¶ 42R; Jeremías Decl. Ex. NN.)

Next, Plaintiff claims that Defendants’ denial of her July 2004 abstract for promotion to Detective Sergeant was discriminatory. Assuming that Plaintiff has set forth a prima facie case of discrimination, Defendants have stated a legitimate, nondiscriminatory reason for the denial: Kellman did not have sufficient investigatory and supervisory experience. (Defs.’ 56.1 Stmt. ¶ 45.) Plaintiff has failed to raise an issue of material fact as to whether the investigatory experience rationale is pretextual. Conner’s interview notes state that Plaintiff and the three other rejected candidates lacked sufficient investigative experience, and Plaintiff had less investigative experience than the promoted candidate. (Jeremías Decl. Ex. EE, at D00013002, D00013018, D00013021; Jere-mías Decl. Ex. GG, at D00015943, D00015946; Jeremías Decl. Ex. HH, at D00015963; Jeremías Decl. Ex. II, at D00016044; Jeremías Decl. Ex. JJ, at D00015977.) However, some evidence suggests that Defendants’ emphasis on Plaintiffs lack of supervisory experience is pretextual. The interview notes do not mention the extent of the other candidates’ supervisory experience, and the person promoted to Detective Sergeant in November 2005 had less supervisory experience than Kellman. (Fuchs Decl. Ex. 44, at D00016619, D00016621; Fuchs Decl. Ex. 45; Jeremías Decl. Exs. GG-II.) Moreover, although Conner’s interview notes state that Plaintiff needs more “ ‘supervisory investigative’ knowledge” (Jeremías Decl. Ex. EE, at D00013002), in his Reply Declaration, he states that Plaintiffs application was denied because “she, like all the candidates other than Jordan, lacked the necessary experience as an investigator” (Conner Reply Decl. ¶ 8).

However, even with the evidence that Defendants’ supervisory experience rationale may be false, a reasonable jury could not find that the promotion denial was based, even in part, on Plaintiffs race or sex. Plaintiff argues that she was more qualified for the position than the three other rejected candidates. However, Plaintiffs qualifications were not so far superior to the other rejected candidates to indicate that the denial of her application was discriminatory. See Byvnie, 243 F.3d at 103 (cautioning courts against “act[ing] as a super personnel department that second guesses employers’ business judgments”) (citation omitted). Moreover, the selection of a man for the position, the statistical evidence of racial disparities in advancement at MTA PD, and the racial and gender breakdown of the candidates Conner promoted throughout his career are insufficient to convince a reasonable jury that Plaintiffs July 2004 application was denied because of her race or sex. (See Pl.’s 56.1 Stmt. ¶¶ PP-RR; Jeremías Decl. Ex. NN.)

Last, Plaintiff argues that Defendants denied her October 2005 application for promotion to Detective Sergeant on the bases of her race and sex. Assuming that Plaintiff has put forth a prima facie case of discrimination, Defendants have stated legitimate, nondiscriminatory reasons for the denial of Plaintiffs application: Plaintiff had not received CIC Training and had never been a detective. (Defs.’ 56.1 Stmt. ¶ 46.) Kellman has failed to raise an issue of material fact as to whether these rationales are pretextual. The Personnel Order listed CIC Training as a requirement and detective experience as a desired qualification. (Jeremías Decl. Ex. PP.) The two individuals interviewed for the position had received CIC Training and had detective experience. (Conner Dep. 125:16-126:9; Fuchs Decl. Ex. 44, at D00016619-21; Fuchs Reply Decl. Ex. 10.) Plaintiff argues that the Sex Crimes and Child Abuse Investigation Course she attended in 2004 was equivalent to CIC Training, but the evidence she cites in support of this argument does not raise a genuine issue of material fact. (Pl.’s Opp’n 10.) In Kellman’s declaration, she states that the Sex Crimes Course “closely follows” and “covers the same basic principles that are covered” in CIC Training. (Reliman Decl. ¶ 13.) However, because Plaintiff has not introduced evidence to support a finding that she has personal knowledge of the CIC Training curriculum, her comparison of the two trainings is inadmissible. See Fed. Rule Evid. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.”). The only other evidence Plaintiff cites to is Pucillo’s testimony that a homicide investigation course would qualify as a CIC Training and Conner’s testimony that several equivalent CIC Trainings existed. (PL’s Resp. Defs.’ 56.1 Stmt. ¶ 46R; Conner Dep. 126:2-5; Pucillo Dep. 200:14-17.) None of the cited evidence indicates that the Sex Crimes Course qualified as a CIC Training, and accordingly, any reasonable jury would find that Plaintiff had not received CIC Training.

Plaintiff argues that, even assuming she did not have CIC Training or detective experience, the imposition of these qualifications indicates pretext. (Pl.’s Opp’n 9-11.) Although these qualifications were not in the two prior Personnel Orders announcing Detective Sergeant openings, the June 2004 Personnel Order was for assignment to a different unit (ICTF) than the July 2004 and October 2005 Personnel Orders (the Detective Division). (Fuchs Decl. Ex. 40; Jeremias Decl. Exs, AA, FF, PP.) As such, the person who set the promotion criteria and reviewed candidates in June 2004 (Pucillo) was different than the person who set the promotion criteria and reviewed candidates in July 2004 and October 2005 (Conner). (Fuchs Decl. Ex. 40; Pucillo Dep. 113:10 — 114:15.) The absence of these qualifications in a Personnel Order for assignment to a different unit with different personnel needs is not probative.

The difference between the July 2004 and October 2005 Pérsonnel Orders is explained in a responsive email sent by Conner to a Human Resources employee the day after publication of the October 2005 Order. (Fuchs Decl. Ex. 40.) Conner wrote that although “investigative background was not part of the [July 2004 Personnel] order,” the rejected candidates’ lack of investigative experience caused him to fill only one of the two Detective Sergeant slots. (Id.) To avoid leaving any slots empty in October 2005, Conner updated the Personnel Order to reflect a preference for investigative experience. (Id.) The email explains why Conner believed investigative experience to be important for detective sergeants, and why CIC Training and detective experience were useful proxies for that experience. (Id.) The two individuals whom Conner promoted to Detective Sergeant in July 2004 and October 2005 both had detective experience, had received CIC Training, and had a great deal of investigative experience. (Fuchs Decl. Ex. 44, at D00016619-21, D00016625; Jeremías Decl. Ex. GG, at D00015943, D00015946.) Plaintiff has not raises an issue of material fact as to whether Conner’s October 2005 decision to seek out individuals with investigative experience and to use CIC Training and detective experience as proxies for that experience was pretextual.

No reasonable jury could find that the October 2005 denial was based, even in part, on Plaintiffs race or sex. Plaintiff argues that she was more qualified for the position than Roderick and Johnston. However, Plaintiffs qualifications were not so far superior to Roderick and Johnston’s to suggest that the denial of her application was race- or sex-based. See Bymie, 243 F.3d at 103. Moreover, the decision to interview two Caucasian men for the position, the statistical evidence of racial disparities in advancement, and the racial and gender breakdown of the candidates Conner promoted during his career do not meet the preponderance of the evidence standard. (See Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 46R; Jeremías Decl. Ex. NN.)

Accordingly, Defendants’ Motion for Summary Judgment regarding Plaintiffs Title VII and NYSHRL disparate treatment claims is GRANTED.

2. NYCHRL Claims

The NYCHRL “‘explicitly requires an independent liberal construction analysis in all circumstances,’ an analysis that ‘must be targeted to understanding and fulfilling what the statute characterizes as the City HRL’s uniquely broad and remedial purposes, which go beyond those of counterpart state or federal civil rights laws.’” Bennett v. Health Mgmt. Sys., Inc., 92 A.D.3d 29, 34, 936 N.Y.S.2d 112 (N.Y.App.Div.2011) (citation omitted); see also Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013) (“[C]ourts must analyze NYCHRL claims separately and independently from any federal and state law claims, construing the NYCHRL’s provisions ‘broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.’ ”) (citation omitted).

For an NYCHRL claim to survive a summary judgment motion,

the plaintiff need only show that her employer treated her less well, at least in part for a discriminatory reason. The employer may present evidence of its legitimate, non-discriminatory motives to show the conduct was not caused by discrimination, but it is entitled to summary judgment on this basis only if the record establishes as a matter of law that “discrimination play[ed] no role” in its actions.

Id. at 110 n. 8 (citation omitted). “[S]um-mary judgment dismissing a claim under the NYCHRL should be granted only if ‘no jury could find defendant liable under any of the evidentiary routes&emdash;McDonnell Douglas, mixed motive, direct evidence, or some combination thereof.’ ” Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 113, 946 N.Y.S.2d 27 (N.Y.App.Div.2012) (citation omitted). However, these evidentiary routes are not applied to Title VII and NYCHRL claims in identical ways. For instance, “to make out the third prong of a prima facie case of discrimination under the NYCHRL, a plaintiff must simply show that she was treated differently from others in a way that was more than trivial, insubstantial, or petty.” Williams v. Regus Mgmt. Grp., LLC, 836 F.Supp.2d 159, 173 (S.D.N.Y.2011); see also Lytle v. JPMorgan Chase, No. 08 Civ. 9503, 2012 WL 393008, at *19 (S.D.N.Y. Feb. 8, 2012) (NYCHRL plaintiff “does not need to demonstrate that he was subject to a materially adverse employment action.”), adopted by 2012 WL 1079964 (S.D.N.Y. Mar. 30, 2012), aff'd by 518 Fed.Appx. 49 (2d Cir. 2013).

Plaintiff has not raised an issue of material fact as to whether the alleged denial of Executive Protection Training, Land Transportation Antiterrorism Training, Plainclothes Training, and Plaintiffs applications for promotion were “caused at least in part by discriminatory ... motives.” Mihalik, 715 F.3d at 113. The evidence discussed supra Part II.B.1 and contained in the record does not meet Plaintiffs burden to show that these denials were motivated at least in part by a discriminatory reason, nor does it meet Plaintiffs burden to show that the denial of ICS Training was motivated at least in part by Plaintiffs sex.

However, Plaintiffs race discrimination claim regarding ICS Training, which must be dismissed pursuant to Title VII and the NYSHRL, survives under the NYCHRL. There is no dispute that Plaintiff satisfies the first two elements of her prima facie discrimination case: she is a member of two protected classes and was qualified for her job. The Parties do, however, dispute the third and fourth elements.

The denial of ICS Training meets the NYCHRL’s definition of “adverse employment action” because it is “more than trivial, insubstantial, or petty.” Jeune v. City of New York, No. 11 Civ. 7424, 2014 WL 83851, at *4 (S.D.N.Y. Jan. 9, 2014) (citation omitted). Employee trainings provide important educational and vocational benefits, and losing access to training is not a trivial matter. The fact that the denial of ICS Training did not lead to promotion rejections does not bar her NYCHRL claim, even though the denial is not adverse under Title VII’s definition. See Williams, 836 F.Supp.2d at 175-76 (holding that ignoring plaintiffs opinion and communicating with him differently than Caucasian employees was adverse under NYCHRL even though it was probably not adverse under Title VII); see also Forgione v. City of New York, No. 11 Civ. 5248, 2012 WL 4049832, at *5-6 (E.D.N.Y. Sept. 13, 2012) (holding that defendants’ referral of plaintiff for psychological evaluation, while not materially adverse under NYSHRL, was not “merely trivial” under NYCHRL); Sotomayor v. City of New York, 862 F.Supp.2d 226, 255, 257-58 (E.D.N.Y.2012) (holding that negative observations, evaluations, and letters to file that did not trigger negative consequences for plaintiffs employment were not adverse under Title VII or NYSHRL but were adverse under NYCHRL).

Plaintiff also satisfies the fourth element of a prima facie case. “Under the NYCHRL, ‘the inference of discrimination prong of the prima facie case is satisfied if a member of a protected class was treated differently than a worker who was not a member of that protected class.’ ” Leon v. Columbia Univ. Med. Ctr., No. 11 Civ. 8559, 2013 WL 6669415, at *11 (S.D.N.Y. Dec. 17, 2013) (citation and alterations omitted). Here, Plaintiff was denied the ICS Training that Defendants provided to individuals who were not African American. (Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 38R.)

Defendants state legitimate, nondiscriminatory reasons for the denial of ICS Training: Kellman’s duties as a patrol sergeant did not require her to attend the Training, nor was attendance within the needs of MTA. (Defs.’ 56.1 Stmt. ¶40.) However, Terrett’s Reply Declaration and Defendants’ Reply brief contradict these rationales. Terrett notes that “ICS Training would have been an appropriate course for Kellman to take in connection with her duties as a Patrol Sergeant.” (Terrett Reply Decl. ¶ 6.) He also provides a new rationale for the denial of ICS Training, which Defendants adopt in their Reply brief: “[B]ecause the course was taking place one or two days after the Personnel Order was issued, [he] was unable to make arrangements for Kellman to take the course at that time.” (Terrett Reply Decl. ¶ 6; Defs.’ Reply 4.) The shifts in Defendants’ rationales alone could convince a reasonable jury that Defendants’ stated rationales are pretextual. See Kwan, 737 F.3d at 846-47.

Beyond this indication of pretext, the record contains additional evidence that the denial of ICS Training was, at least in part, motivated by Plaintiffs race. Every sergeant assigned to the ICS Trainings occurring between March 2005 and October 2006 was Caucasian. (Pl.’s Resp. Defs.’ 56.1 Stmt. ¶ 38R.) One of these Caucasian sergeants was Grascia, who, like Plaintiff, worked in District 5-Gran