Gonzalez v. New York City Transit Authority

Full title: GABRIEL GONZALEZ, Plaintiff, v. NEW YORK CITY TRANSIT AUTHORITY and…

Court: United States District Court, S.D. New York

Date published: May 9, 2001

00 Civ. 4293 (SHS)(AJP) (S.D.N.Y. May. 9, 2001)

Opinion

00 Civ. 4293 (SHS)(AJP)

May 9, 2001

REPORT AND RECOMMENDATION

ANDREW J. PECK, United States Magistrate Judge.

Pro se plaintiff Gabriel Gonzalez, a Hispanic male, brought this Title VII action against his employer, the New York City Transit Authority ("Transit Authority" or "T.A.") and his supervisor, William Yost. (See Dkt. No. 1: Compl.) Gonzalez claims that he was discriminated against due to his race, color and national origin, and retaliated against as a result of a personal "grudge" held by Yost, when he was demoted after an investigation concerning falsified time sheets of Transit Authority workers. (Compl. ¶¶ 4, 7, 8.) Defendants have moved for summary judgment. (Dkt. Nos. 9-11, 17.)

For the reasons set forth below: the Court recommends that summary judgment be granted dismissing all Title VII claims against the individual defendant, William Yost, because it is black letter law in the Second Circuit that individual supervisors are not "employers" within the meaning and coverage of Title VII. (Point II, below.) Summary judgment also should be granted in favor of the Transit Authority since (1) Gonzalez has failed to establish a prima facie case of discrimination and has failed to show that the Transit Authority's reasons for disciplinary action were a pretext for discrimination (Point IV. B below), and (2) Gonzalez has failed to establish a prima facie case of retaliation (Point IV. C below).

FACTS

The Parties Plaintiff Gabriel Gonzalez, a Puerto Rican male, was hired by the Transit Authority in 1980 as a Railroad Stockworker. (Compl. ¶ 7; Dkt. No. 9: Westcott Aff. ¶¶ 3-4; Dkt. No. 9: T.A. 56.1 Stmt. ¶ 1.) On February 6, 1988, Gonzalez was promoted to Stockroom Supervisor (Maintenance Supervisor, Level I), a position he held until 1999, when he was disciplined and demoted back to Railroad Stockworker. (Westcott Aff. ¶¶ 4-5; Ex. D: Maintenance Supervisor Seniority List; T.A. 56.1 Stmt. ¶ 1.)¹

1 References to lettered exhibits and numbered exhibits refer to the Transit Authority's exhibits attached to the 12/22/00 Declaration of Kimberly Westcott, counsel for the Transit Authority, and the 12/21/00 Declaration of William Yost, respectively.

The Transit Authority, a corporation existing under Public Authorities Law § 1201 et seq., operates New York City's transit facilities, including subway and bus services throughout the five boroughs. (Westcott Aff. ¶ 2; T.A. 56.1 Stmt. ¶ 2.)

Defendant William Yost met Gonzalez in 1980, when Yost was Vice Chairperson of the union that represents hourly T.A. employees. (T.A. 56.1 Stmt. ¶ 4; Dkt. No. 9: Yost Aff. ¶ 3; Gonzalez Dep. at 73.)² At that time, both Yost and Gonzalez were Railroad Stockworkers. (Id.) From 1987 to 1994, Yost was Manager of Labor Relations for the T.A. Division of Distribution, responsible for preparing and processing all personnel actions affecting hourly employees. (T.A. 56.1 Stmt. ¶ 6; Yost Aff. ¶ 1.) Until Yost was promoted to a management position, Gonzalez's interaction with Yost was "good." (Gonzalez Dep. at 75.) Currently, Yost is the Director of Operations Management Division of Supply Logistics (the department which receives, stores and maintains supplies for the Transit Authority). (Yost Aff. ¶ 1; T.A. 56.1 Stmt. ¶ 3; T.A. Br. at 2; Gonzalez Dep. at 72.)

2 Excerpts from the Gonzalez deposition are Exs. E-U.

Among other duties, Yost investigates all disciplinary cases within his division. (Yost Aff. ¶ 1.)

The 1986-88 Union Grievance Procedures and Yost's Alleged "Grudge" Against Gonzalez

In or about August 1986, Gonzalez was "capped" from performing additional overtime as a Railroad Stockworker. (T.A. 56.1 Stmt. ¶ 7; Gonzalez Dep. at 76.) Gonzalez filed a grievance through his union for alleged overtime accrued, and Yost represented management in the grievance process. (Gonzalez Dep. at 76; T.A. 56.1 Stmt. ¶¶ 7-8.) Gonzalez alleges that since a "special project" budget justified payment of his overtime hours, the Transit Authority was wrong to cap his overtime. (Gonzalez Dep. at 79-81; T.A. 56.1 Stmt. ¶ 8.) According to Gonzalez, when he attempted to tell the hearing officer about the "special project" during the last stage of his grievance process in 1988, Yost became upset because Yost "had to answer something he didn't want to. [Yost] knew management was wrong in capping [Gonzalez's overtime] at that time." (Gonzalez Dep. at 81-82.)

According to Gonzalez, his grievance was never resolved because it involved "unearned income," and "the officer who was hearing the case couldn't rule on it to make an award" "so it would have to go to . . . the next level." (Gonzalez Dep. at 82.) Rather than pursue his grievance further, however, Gonzalez alleges that he withdrew it because Yost told Gonzalez that Yost's "job was in jeopardy" and that if Gonzalez "won the grievance, [Yost] would be out of a job." (Gonzalez Dep. at 82-84; see also id. at 87; T.A. 56.1 Stmt. ¶ 9.) Gonzalez alleges that, since that incident in 1988, Yost has held a grudge against him, because Gonzalez "had [Yost] in a position to hurt him." (Gonzalez Dep. at 89.) Gonzalez asserts that in the last year or so, a fellow Transit Authority employee told him Yost "resented [Gonzalez] for having placed him in a 'vulnerable position' back in 1988." (T.A. 56.1 Stmt. ¶ 11; Gonzalez Dep. at 89.)

The October 1998 Investigation of Falsified Time Cards In October 1998, the Supply Logistics Division investigated reports that supervisors were allowing employees to leave work early and submit inaccurate time cards so as to be paid for time not worked.³ (T.A. 56.1 Stmt. ¶ 12.) As a result of that investigation, Gonzalez was charged with "[t]ampering with time cards and letting someone get paid for going home early two times and . . . imped[ing] an investigation by management." (Gonzalez Dep. at 90-91.) Supervisors in addition to Gonzalez who were charged were: Eugene Chiamulera (a white male), Casimir Marynowski, (a white male) and Gregory McCann (a white male). (T.A. 56.1 Stmt. ¶¶ 12, 14, 16; Yost Aff. ¶¶ 5-8.) Three hourly employees were charged with submitting false time reports: Milan Cvorovic (a white male), Nicholas Prata (a white male), and James Taylor (an African-American male). (Id.)

3 After a comprehensive investigation, the Transit Authority found that as a result of employees "stealing time," the Transit Authority experienced losses "in the range of $15.4 million to $23.2 million." (Dkt. No. 16: Gonzalez Aff., Executive Summary of 12/98 MTA Inspector General Investigation.)

The Transit Authority prepared disciplinary charges and sought dismissal of all four supervisors and the three employees. (Id.) Chiamulera resigned and McCann opted for early retirement in lieu of termination. (T.A. 56.1 Stmt. ¶ 14; Yost Aff. ¶ 7; Ex. 4: Chiamulera Stip.; Ex. 5: McCann Stip.) Prata and Taylor appeared before the Tripartite Arbitration Board ("Board"), "whose decision is final and binding upon the parties." See Taylor v. New York City Transit Auth., 96 Civ. 4322, 1997 WL 620843 at *1 (S.D.N.Y. Oct. 7, 1997). Because Prata's supervisors admitted that they permitted him to leave early, the Board found that a 30 day suspension, in addition to a return of the payments he received for falsely reporting time, was appropriate. (T.A. 56.1 Stmt. ¶ 16; Yost Aff. ¶ 8; Ex. 8:12/14/98 Tripartite Arbitration Board Decision.) Cvorovic cooperated with Transit Authority investigators, and was suspended for 20 days in lieu of termination. (T.A. 56.1 Stmt. ¶ 16; Yost Aff. ¶ 8; Ex. 9: Cvorovic Stip.; Ex. 7:5/4/99 OATH Report Rec. at 5.) Taylor, who did not cooperate with the Transit Authority, was terminated by the Board after a finding that "had [Taylor] not been caught, he would still be committing the offenses for which he is hereby dismissed." (Ex. 10:1/8/99 Board Decision; T.A. 56.1 Stmt. ¶ 16; Yost Aff. ¶ 8.)

Gonzalez's April 1999 OATH Hearing

Maryknowski and Gonzalez contested the charges and went to trial before the Office of Administrative Trials and Hearings ("OATH"), an independent City agency that hears matters involving supervisory employees and makes recommendations to the T.A. Office of Labor Relations. (T.A. 56.1 Stmt. ¶¶ 14-15, 18; Yost Aff. ¶ 7; Gonzalez Dep. at 90-91.) After a hearing, the OATH Administrative Law Judge ("ALJ") recommended a forty day suspension for Maryknowski, but the T.A. Office of Labor Relations instead demoted Maryknowski to an hourly, rather than his former supervisory, position. (T.A. 56.1 Stmt. ¶ 15.; Yost Aff. ¶ 7; Ex. 6:1/28/99 OATH Report Rec. 2/12/99 T.A. Decision.)

Gonzalez's OATH hearing, in which he was represented by counsel, was held on April 20, 1999. (T.A. 56.1 ¶ 18-20; Gonzalez Dep. at 92-93, 103; Ex. 7:5/4/99 OATH Report Rec. at 1-2.) Gonzalez denied submitting false reports for any of the dates for which he was investigated, asserting that he always performed a head count and a security check at the end of the day and he did not permit employees to leave early. (Ex. 3: 12/17/98 Gonzalez Handwritten Statements.)

On May 4, 1999, the OATH ALJ issued his recommendation, finding as follows:

The respondent, Gabriel Gonzalez, is charged with allowing a subordinate to leave work early on two occasions, allowing the employee to submit an inaccurate time card, and submitting false reports about the incident. He is further charged with improperly providing advice to subordinate employees during a management investigation of a separate incident and with submitting a false report with regard to that matter. . . .

. . . .

The evidence is clear that Mr. Taylor left work well before the end of his tour on May 22, 1998 and August 28, 1998. The fare card histories produced by the agency . . . show that he entered the 207th Street subway station at 19:36 hours (7:36 p.m.) on May 22, and at 19:30 hours (7:30 p.m.) on August 28.

. . . .

The apparent friendship of Messrs. Taylor and Gonzalez makes it eminently plausible that [Gonzalez] allowed Mr. Taylor to leave early on the two dates on which he worked an overtime tour, serving as the supervisor of the storeroom to which Mr. Taylor was assigned. That friendship is a significant consideration in critically assessing Mr. Taylor's credibility. So too is Mr. Taylor's dismissal from employment with the Transit Authority for the very sort of conduct which he apparently engaged in on these two occasions with the respondent's blessing.

The respondent conceded he was responsible as a supervisor for monitoring the hours and work of his subordinates and to report rule violations to higher levels of management. . . . He has not claimed that he did not know of Mr. Taylor's misconduct, but he has affirmatively misrepresented that Mr. Taylor was at the storeroom at closing time.

(Ex. 7:5/4/99 OATH Report Rec. at 1, 11.) The ALJ concluded:

1. On May 22, 1998 and August 28, 1998, [Gonzalez] permitted an employee under his supervision, James Taylor, to leave work before the end of his scheduled tour of duty and knowingly accepted time cards from Mr. Taylor which were inaccurate.

2. [Gonzalez] submitted false reports on November 30, 1998, December 17, 1998, and January 21, 1999.

3. On October 26, 1998, during a management investigation of possible misconduct, [Gonzalez] gave information/advice to a subordinate employee concerning how to respond in writing to inquiries from management. . . .

More disturbing is [Gonzalez's] repeated failure to acknowledge his misconduct despite having been given several opportunities to do so. He would have been well-advised to follow Mr. Cvorovic's example [of cooperating with the Transit Authority's investigation]. However, given the respondent's long tenure without prior incidents, demotion to a non-supervisory title [in lieu of termination] would appear to be the appropriate measure of discipline.

(Id. at 13, 15.)

On May 20, 1999, the T.A. Office of Labor Relations affirmed the ALJ's decision and Gonzalez was demoted to an hourly workers position. (Ex. 7:5/20/99 Office of Labor Relations Approval of OATH Report Rec.)⁴

4 Gonzalez also alleges that he was suspended for 66 days in addition to being demoted. (Compl. ¶ 8.) There is no reference in the record submitted to the Court to Gonzalez's suspension or its duration. The Transit Authority's papers do not address Gonzalez's allegation that he was suspended for 66 days in addition to being demoted. (See Dkt. No. 11: T.A. Br.; T.A. 56.1 Stmt.)

Gonzalez's Complaint before the State Division of Human Rights and EEOC On May 10, 1999, Gonzalez filed a complaint with the New York State Division of Human Rights ("SDHR") alleging that the Transit Authority "denied him equal terms, conditions and privileges of employment, because of his national origin" (Puerto Rican) in violation of the State Human Rights Law. (See Ex. B: 2/24/00 SDHR Determination Order.)

The SDHR found that an "investigation fails to support these allegations" and further held:

All of the supervisors involved were brought up on charges and they were of varying national origins. The record reveals that [Gonzalez] was accused of allowing a subordinate to leave early without authorization. [Gonzalez] then provided subordinates with statements to intentionally mislead and obstruct the [Transit Authority's] investigation into the matter. There is no evidence to support the notion that [Gonzalez's] national origin was a factor concerning [the Transit Authority's] actions concerning his work performance.

[The Transit Authority] has articulated legitimate non-discriminatory reasons for discharging⁵ [Gonzalez], which reasons have not been shown to be pretextual.

5 The SDHR and the Transit Authority's reference to Gonzalez being discharged is an error. Gonzalez was not discharged, but rather, was suspended and demoted in lieu of being discharged. (See Ex. 7:5/4/99 OATH Report Rec. at 1, 11-15 5/20/99 Office of Labor Relations Approval of OATH Report Rec.; Compl. ¶¶ 4, 8.)

The complaint is therefore ordered dismissed and the file is closed. (Id.) Gonzalez filed a request for EEOC review; the EEOC adopted the findings of the SDHR. (Ex. C: 3/22/00 EEOC Dismissal Notice of Rights.)

Gonzalez's Federal Law Suit Gonzalez filed the present pro se action in this Court on June 9, 2000 alleging that he was discriminated against based on his race, color and national origin (Puerto Rican), and was retaliated against because of a "grudge" held against him by his supervisor, when he was suspended and demoted in connection with the investigation involving falsified T.A. employee time reports. (Dkt. No. 1: Compl. ¶¶ 4-8.)

In his complaint, Gonzalez asserted the following:

I was charged, 1/19/99 (charges modified 2/19/99) (suspended for 66 days). Charges were unsubstantiated. It was more a personal matter with Mr. W. Yost — (Grudge held from "1988"). Charges modified 2/19/99 — then suspended.

State Human Rights of N.Y. didn't fully investigate. Files from T.A. of all personnel in my title as M.S.I. weren't turned over [by the Transit Authority] as a comparison.

[The] subordinate involved separated from my case [and was the] only African American involve[d] to be terminated (Mr. James Taylor).

In [the] course of their investigation management found three other [supervisors] in (Itilians) (sic) violation and did not charge or discipline. (Friends of management and personal to Mr. W. Yost.)

(Compl. ¶ 8, emphasis added.)

After completion of discovery, the Transit Authority moved for summary judgment, alleging that: (1) Gonzalez failed to preserve discrimination claims based on race and color (Dkt. No. 11: T.A. Br. at 7), (2) no individual liability exists under Title VII (T.A. Br. at 8), (3) Gonzalez's demotion was not the result of discrimination (T.A. Br. at 8-13), (4) Gonzalez is precluded by res judicata and collateral estoppel from alleging discrimination because the OATH ALJ's findings of fact "conclusively establish a valid basis for [Gonzalez]'s discipline" (T.A. Br. at 13-16), and (5) Gonzalez has not submitted any evidence of retaliation because he was not engaged in a protected activity at the time he was charged with making and accepting false reports and because Gonzalez's allegations of a "grudge" do not support relief under Title VII (T.A. Br. at 16-17).

Gonzalez submitted a two-paragraph affirmation in response to the Transit Authority's motion, alleging that he has personal "knowledge of facts which bear on this motion because of an MTA . . . investigation [of falsified time reports] at [another facility] involving nine supervisors which were given more lenient penalties." (Gonzalez Aff. ¶ 2.)

Essentially, Gonzalez's position is that he is entitled to Title VII relief because other employees, who "were Mr. Yost's friends" (e.g., Gonzalez Dep. at 107), were allegedly treated more leniently than he was, or were not charged at all, even though they committed the same offense. (Gonzalez Dep. at 107, 109.) As support for his allegations that other employees were treated more "leniently," Gonzalez submitted the Stipulations of Settlement for nine Transit Authority employees in another division who also were investigated for inaccurate time reports and who "acknowledge[d] the charges . . . and admitt[ed] to an amended charge of 'improper supervision'" in exchange for "a thirty (30) day suspension . . . a final warning . . . [a notation in the employee's] disciplinary record" and the ability to return to work. (See Gonzalez Aff.: Stipulations of Settlement for David Kolb; Ronald Sartini; Michael Magnus; Hope L. Morgan; James Nowinsky; Americo Guzzi; Oneil Turner; Joseph Rozas; Pushpal Bahumik.)

ANALYSIS

I. SUMMARY JUDGMENT STANDARDS IN EMPLOYMENT DISCRIMINATION CASES

Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991).⁶

6 See also, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000); Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *12 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *7 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *6 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.); Johns-Davila v. City of New York, 99 Civ. 1885, 2000 WL 1725418 at *3 (S.D.N.Y. Nov. 20, 2000) (Peck, M.J.); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 352 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Douglas v. Victor Capital Group, 21 F. Supp.2d 379, 387 (S.D.N.Y. 1998) (Stein, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't Corp. Counsel, 94 Civ. 9042, 1997 WL 27047 at *6 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.).

The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment — here, defendants. See, e.g., Adickes v. S.H. Kress Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir. 1994); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994).⁷ The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.⁸

7 See also, e.g., Economou v. Caldera, 2000 WL 1844773 at *12; Cobian v. New York City, 2000 WL 1782744 at *7; Austin v. Ford Models, Inc., 2000 WL 1752966 at *6; Johns-Davila v. City of New York, 2000 WL 1725418 at *3.

8 See also, e.g., Economou v. Caldera, 2000 WL 1844773 at *12; Cobian v. New York City, 2000 WL 1782744 at *7; Austin v. Ford Models, Inc., 2000 WL 1752966 at *6; Johns-Davila v. City of New York, 2000 WL 1725418 at *3.

To defeat a summary judgment motion, the non-moving party must do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986).⁹ Instead, the non-moving party must "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356.¹⁰

9 See also, e.g., Economou v. Caldera, 2000 WL 1844773 at *12; Cobian v. New York City, 2000 WL 1782744 at *7; Austin v. Ford Models, Inc., 2000 WL 1752966 at *6; Johns-Davila v. City of New York, 2000 WL 1725418 at *3.

10 See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 41 (At summary judgment, "[t]he time has come . . . 'to put up or shut up'"); Economou v. Caldera, 2000 WL 1844773 at *12; Cobian v. New York City, 2000 WL 1782744 at *7; Austin v. Ford Models, Inc., 2000 WL 1752966 at *6; Johns-Davila v. City of New York, 2000 WL 1725418 at *3.

In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513.¹¹ The Court draws all inferences in favor of the nonmoving party only after determining that such inferences are reasonable, considering all the evidence presented. See, e.g., Apex Oil Co. v. DiMauro, 822 F.2d 246, 252 (2d Cir.), cert. denied, 484 U.S. 977, 108 S.Ct. 489 (1987).¹² "If, as to the issue on which summary judgment is sought, there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party, summary judgment is improper." Chambers v. TRM, 43 F.3d at 37.¹³

11 See also, e.g., Chambers v. TRM, 43 F.3d at 36; Gallo v. Prudential, 22 F.3d at 1223; Cobian v. New York City, 2000 WL 1782744 at *7; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *6.

12 Accord, e.g., Economou v. Caldera, 2000 WL 1844773 at *12; Cobian v. New York City, 2000 WL 1782744 at *7; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *3; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

13 Accord, e.g., Economou v. Caldera, 2000 WL 1844773 at *12; Cobian v. New York City, 2000 WL 1782744 at *7; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed issue of material fact. See, e.g., Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 58 (2d Cir. 1987); Knight v. United States Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 1907 S.Ct. 1570 (1987).¹⁴ To evaluate a fact's materiality, the substantive law determines which facts are critical and which facts are irrelevant. See, e.g., Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510.¹⁵ While "disputes over facts that might affect the outcome of a suit under the governing law will properly preclude the entry of summary judgment[,] [f]actual disputes that are irrelevant or unnecessary will not be counted." Anderson v. Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510 (citations omitted).¹⁶

14 Accord, e.g., Economou v. Caldera, 2000 WL 1844773 at *12; Cobian v. New York City, 2000 WL 1782744 at *7; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387.

15 Accord, e.g., Economou v. Caldera, 2000 WL 1844773 at *12; Cobian v. New York City, 2000 WL 1782744 at *7; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387.

16 See also, e.g., Knight v. United States Fire Ins. Co., 804 F.2d at 11-12; Economou v. Caldera, 2000 WL 1844773 at *12; Cobian v. New York City, 2000 WL 1782744 at *7; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 387.

When a case turns on the intent of one party, as employment discrimination claims often do, a "trial court must be cautious about granting summary judgment." Gallo v. Prudential, 22 F.3d at 1224.¹⁷ Because the employer rarely leaves direct evidence of its discriminatory intent, the Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. E.g., Gallo v. Prudential, 22 F.3d at 1224.¹⁸ "[S]ummary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. There must either be a lack of evidence in support of the plaintiff's position or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error." Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted).¹⁹ Nonetheless, when an employer provides convincing evidence to explain its conduct and the plaintiff's argument consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment to the employer. E.g., Budde v. HK Distrib. Co., No. 99-9449, 216 F.3d 1071 (table), 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995).²⁰ In other words, to defeat summary judgment, "the plaintiff's admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant's employment decision was more likely than not based in whole or in part on discrimination." Stern v. Trustees of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough . . . to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination.") (internal quotations alterations omitted); Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (plaintiff must "produce not simply 'some' evidence, but 'sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the employer were false, and that more likely than not [discrimination] was the real reason for the discharge'").²¹ Indeed, the Second Circuit "went out of [its] way to remind district courts that the 'impression that summary judgment is unavailable to defendants in discrimination cases is unsupportable.'" Weinstock v. Columbia Univ., 224 F.3d at 41; accord, e.g., Economou v. Caldera, 2000 WL 1844773 at *13.

17 Accord, e.g., Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("in an employment discrimination case when, as here, the employer's intent is at issue, the trial court must be especially cautious about granting summary judgment"); McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) ("caution must be exercised in granting summary judgment where motive is genuinely in issue"); Cardozo v. Healthfirst Inc., 98 Civ. 3050, 1999 WL 782546 at *1-2 (S.D.N.Y. Sept. 30, 1999); see also, e.g., Chambers v. TRM, 43 F.3d at 40; Economou v. Caldera, 2000 WL 1844773 at *13; Cobian v. New York City, 2000 WL 1782744 at *8; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

18 See also, e.g., Economou v. Caldera, 2000 WL 1844773 at *13; Cobian v. New York City, 2000 WL 1782744 at *8; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 353; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7.

19 Accord, e.g., Economou v. Caldera, 2000 WL 1844773 at *13; Cobian v. New York City, 2000 WL 1782744 at *8; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354.

20 See also, e.g., Economou v. Caldera, 2000 WL 1844773 at *13; Cobian v. New York City, 2000 WL 1782744 at *8; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Johns-Davila v. City of New York, 2000 WL 1725418 at *4; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354; Douglas v. Victor Capital Group, 21 F. Supp.2d at 388; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7; Engelmann v. National Broad. Co., 94 Civ. 5616, 1996 WL 76107 at *7 (S.D.N.Y. Feb. 22, 1996).

21 See also, e.g., Budde v. HK Distrib. Co., 2000 WL 900204 at *1; Economou v. Caldera, 2000 WL 1844773 at *13; Cobian v. New York City, 2000 WL 1782744 at *8; Austin v. Ford Models, Inc., 2000 WL 1752966 at *7; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 354; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *7; Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *5 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652, 654 (2d Cir. 1997).

II. DEFENDANT YOST IS GRANTED SUMMARY JUDGMENT BECAUSE INDIVIDUAL DEFENDANTS ARE NOT LIABLE UNDER TITLE VII

It is black letter law in the Second Circuit that "[i]ndividual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII." Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995).²² Therefore, summary judgment is granted dismissing all Title VII claims against individual defendant William Yost.

22 Accord, e.g., Ritter v. Medical Arts Ctr. Hosp., 94 Civ. 5883, 1997 WL 45349 at *5 (S.D.N.Y. Feb. 5, 1997) (Stein, D.J.); Perezic v. Crespo, 94 Civ. 8238, 1996 WL 233687 at *2 (S.D.N.Y. May 7, 1996) (Stein, D.J.); Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *10 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); Burger v. Litton, 91 Civ. 918, 1996 WL 421449 at *16 (S.D.N.Y. Apr. 25, 1996) (Peck, M.J.) (citing cases), report rec. adopted, 1996 WL 609421 (Knapp, D.J.).

III. GONZALEZ IS NOT COLLATERALLY ESTOPPED AS TO THE CAUSE OF HIS DISCIPLINE BY THE OATH ALJ'S DECISION

The Transit Authority argues that the findings of the OATH Administrative Law Judge "conclusively establish a non-pretextual basis for plaintiff's discipline." (Dkt. No. 11: T.A. Br. at 14, citing University of Tennessee v. Elliott.) The Transit Authority's application of Elliott's holding as to a 42 U.S.C. § 1983 action is dead wrong, and ignores Elliott's clear holding that administrative decisions have no preclusive effect on a Title VII claim. Elliott is an extension of the Supreme Court's earlier decision in Kremer v. Chemical Constr. Corp., 456 U.S. 461, 102 S.Ct. 1883 (1982). See University of Tennessee v. Elliott, 478 U.S. 788, 792 n. 3, 106 S.Ct. 3220, 3223 n. 3 (1986) ("While Kremer teaches that final state-court judgments are entitled to full faith and credit in Title VII actions, it indicates that unreviewed determinations by state agencies stand on a different footing."). This opinion therefore will discuss Kremer and then Elliott. "As one of its first acts, Congress directed that all United States courts afford the same full faith and credit to state court judgments that would apply in the State's own courts." Kremer v. Chemical Constr. Corp., 456 U.S. at 462-63, 102 S.Ct. at 1887-88 (citing 28 U.S.C. § 1738).²³ The question raised in Kremer was whether Title VII superceded § 1738 or whether "a federal court in a Title VII case should give preclusive effect to a decision of a state court upholding a state agency's" decision regarding employment discrimination. Kremer, 456 U.S. at 463, 102 S.Ct. at 1888. The Supreme Court extensively reviewed the purpose and legislative history of Title VII. Id. at 468-78, 102 S.Ct. at 1890-96. The Supreme Court concluded that "[b]ecause there is no 'affirmative showing' of a 'clear and manifest' legislative purpose in Title VII to deny res judicata or collateral estoppel effect to a state court judgment affirming [the New York State Division of Human Rights' decision] that a claim of employment discrimination is unproved, and because the procedures provided in New York for the determination of such claims offer a full and fair opportunity to litigate the merits," the state court judgment would be given collateral estoppel effect. Kremer v. Chemical Constr. Corp., 456 U.S. at 485, 102 S.Ct. at 1899.

23 The "full faith and credit" statute, 28 U.S.C. § 1738, provides in pertinent part that state judicial proceedings "shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State, Territory or Possession from which they are taken."

The Supreme Court in Kremer, albeit in dicta in a footnote, also addressed the lack of collateral estoppel effect of a judicially unreviewed state agency determination as to discrimination:

Since it is settled that decisions by the EEOC do not preclude a trial de novo in federal court, it is clear that unreviewed administrative determinations by state agencies also should not preclude such review even if such a decision were to be afforded preclusive effect in a State's own courts.

Kremer v. Chemical Constr. Corp., 456 U.S. at 470 n. 7, 102 S.Ct. at 1891 n. 7 (emphasis added, citing decisions from the Second, Fifth and Sixth Circuits.)

In University of Tennessee v. Elliott, the Supreme Court squarely addressed the issue of whether an agency determination as to discrimination, not reviewed by a state court, is entitled to collateral estoppel effect in federal court in a suit under Title VII (and also under 42 U.S.C. § 1983). University of Tennessee v. Elliott, 478 U.S. at 790, 106 S.Ct. at 3221-22. The Supreme Court began by noting that " 28 U.S.C. § 1738 governs the preclusive effect to be given the judgments and records of state courts, and is not applicable to the unreviewed state administrative factfinding at issue" before the Court. University of Tennessee v. Elliott, 478 U.S. at 794, 106 S.Ct. at 3224. The Supreme Court then road-mapped the balance of its opinion — "we will consider whether a rule of preclusion is appropriate, first with respect to respondent's Title VII claim, and next with respect to his claims under the Constitution and the Reconstruction civil rights statutes." Id. at 795, 106 S.Ct. at 3224.

The Supreme Court's Title VII analysis looked at Title VII's language and Kremer's observation about that language:

Under 42 U.S.C. § 2000e-5(b), the Equal Employment Opportunity Commission (EEOC), in investigating discrimination charges, must give "substantial weight to final findings and orders made by State or local authorities in proceedings commenced under State or local [employment discrimination] law." As we noted in Kremer, 456 U.S. at 470, n. 7, 102 S.Ct. at 1891, n. 7, it would make little sense for Congress to write such a provision if state agency findings were entitled to preclusive effect in Title VII actions in federal court.

University of Tennessee v. Elliott, 478 U.S. at 795, 106 S.Ct. at 3224. After also briefly reviewing its prior decision in Chandler v. Roudebush, 425 U.S. 840, 96 S.Ct. 1949 (1976), the Supreme Court concluded "that Congress did not intend unreviewed state administrative proceedings to have preclusive effect on Title VII claims." University of Tennessee v. Elliott, 478 U.S. at 796, 106 S.Ct. at 3225.²⁴

24 The Elliott Court then went on, in Point IV of its opinion, to consider the preclusive effect of unreviewed state administrative proceedings in actions under 42 U.S.C. § 1983. University of Tennessee v. Elliott, 478 U.S. at 796-97, 106 S.Ct. at 3225. The Court found that § 1983 did not have the same legislative history as Title VII of creating an exception to general rules of preclusion. Id. at 797-99 n. 7, 106 S.Ct. at 3225-26 n. 7. Thus, as to § 1983 claims, the Supreme Court held — in the language erroneously relied upon in the T.A.'s brief — "that when a state agency 'acting in a judicial capacity . . . resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate,' federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's courts." University of Tennessee v. Elliott, 478 U.S. at 799, 106 S.Ct. at 3226 (citation omitted).

Thus, it has been well established for over ten years that an unreviewed state administrative determination does not preclude de novo federal court consideration of a Title VII claim such as Gonzalez's. See also, e.g., Raniola v. Bratton, 243 F.3d 610, 624 (2d Cir. 2001); Astoria Fed. Sav. Loan Ass'n v. Solimino, 501 U.S. 104, 110-112, 111 S.Ct. 2166, 2172 (1991) (extends Elliott rule to ADEA cases); DeCintio v. Westchester County Med. Ctr., 821 F.2d 111, 114-15 (2d Cir.) (Elliott "establishes the basic proposition that [plaintiff] is entitled to a trial de novo on his Title VII claim, since he did not seek state court review of the SDHR administrative proceedings adjudicated against him."), cert. denied, 484 U.S. 965, 108 S.Ct. 455 (1987); Roth v. Koppers Indus., Inc., 993 F.2d 1058, 1062 (3d Cir. 1993) ("Following Elliott, the courts of appeals have unanimously concluded that unreviewed administrative agency findings can never be accorded issue preclusive effect in subsequent Title VII proceedings," citing cases).²⁵ Accordingly, plaintiff Gonzalez is not collaterally estopped by the judicially unreviewed OATH ALJ decision.

25 See also, e.g., McInnes v. California, 943 F.2d 1088, 1093-94 (9th Cir. 1991) (Under Elliott, "unreviewed administrative determinations lack preclusive effect in a subsequent Title VII action, regardless of any preclusive effect state law might accord to them."); Duggan v. Bd. of Educ. of E. Chicago Heights, 818 F.2d 1291 (7th Cir. 1987); Abramson v. Council Bluffs Cmty. School Dist., 808 F.2d 1307, 1308-09 n. 1 (8th Cir. 1987) ("Issues in Title VII claims are not subject to preclusion by unreviewed state administrative proceedings," citing Elliott); Arroyo v. WestLB Admin., Inc., 54 F. Supp.2d 224, 230 (S.D.N.Y. 1999), aff'd mem., 213 F.3d 625 (2d Cir. 2000); Sikri v. Gilmore, 97 Civ. 2367, 1999 WL 156385 at *2 (S.D.N.Y. Mar. 23, 1999); Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *15 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.) ( cases cited therein); Mendoza v. SSCB Lintas, New York, 799 F. Supp. 1502, 1508 n. 2 (S.D.N.Y. 1992) ("Unreviewed state administrative proceedings do not have preclusive effect with respect to claims brought under Title VII."); Linares v. City of White Plains, 773 F. Supp. 559, 564 (S.D.N.Y. 1991); Alcena v. Raine, 692 F. Supp. 261, 269 (S.D.N.Y. 1988) (no collateral estoppel preclusion in Title VII case from unreviewed NYSDHR decision, citing Elliott).

IV. THE TRANSIT AUTHORITY SHOULD BE GRANTED SUMMARY JUDGMENT ON GONZALEZ'S DISCRIMINATION AND RETALIATION CLAIMS

A. Legal Standard

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against any individual "with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex or national origin." 42 U.S.C. § 2000e-2(a)(1). Gonzalez alleges that the Transit Authority discriminated against him based on his national origin, race and color (Compl. ¶ 7), thereby violating Title VII.²⁶

26 The Transit Authority asserts that Gonzalez failed to raise claims based on race and color before the SDHR or the EEOC and therefore failed to preserve such claims. (T.A. Br. at 7.) The T.A., however, has not submitted to the Court Gonzalez's SDHR/EEOC complaints — only the EEOC and SDHR decisions (referring to a national origin claim) are before the Court. (Exs. B-C.) The Court need not determine whether Gonzalez preserved his discrimination claims based on race and color, since Gonzalez has not proved any discrimination.

Under the familiar McDonnell Douglas burden-shifting analysis, the plaintiff has the burden at the outset of "proving by the preponderance of the evidence a prima facie case of discrimination." Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093 (1981); see, e.g., Reeves v. Sanderson Plumbing, 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000); O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 310, 116 S.Ct. 1307, 1309 (1996); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507, 113 S.Ct. 2742, 2746-47 (1993); McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. at 1824.²⁷ Establishment of a prima facie case "'in effect creates a presumption that the employer unlawfully discriminated against the employee.'" St. Mary's v. Hicks, 509 U.S. at 506, 113 S.Ct. at 2747 (quoting Texas Dep't of Community Affairs v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094).²⁸

27 See also, e.g., Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *11 (S.D.N Y Dec. 6, 2000) (Peck, M.J.); Austin v. Ford Models, Inc., 98 Civ. 3731, 2000 WL 1752966 at *8 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 354 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Lediju v. New York City Dep't of Sanitation, 173 F.R.D. 105, 113-14 (S.D.N.Y. 1997) (Leisure, D.J. Peck, M.J.); Hernandez v. New York City Law Dep't, 94 Civ. 9042, 1997 WL 27047 at *12 (S.D.N.Y. Jan. 23, 1997) (Peck, M.J.); Burger v. Litton, 1996 WL 421449 at *8 (S.D.N.Y. Apr. 25, 1996) (Peck, M.J.), report rec. adopted, 1996 WL 609421 (S.D.N.Y. Oct. 22, 1996) (Knapp, D.J.).

28 See also, e.g., Scaria v. Rubin, 117 F.3d 652, 654 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Cobian v. New York City, 2000 WL 1782744 at *11; Austin v. Ford Models, Inc., 2000 WL 1752966 at *8; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 355; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *12; Burger v. Litton, 1996 WL 421449 at *8.

Once a plaintiff claiming employment discrimination has established a prima facie case, the burden shifts to the defendant to rebut the presumption of discrimination by articulating a legitimate, non-discriminatory reason for its employment decision. E.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142-43, 120 S.Ct. at 2106; O'Connor v. Consolidated Coin, 517 U.S. at 310, 116 S.Ct. at 1309; St. Mary's v. Hicks, 509 U.S. at 506-07, 113 S.Ct. at 2747; Texas v. Burdine, 450 U.S. at 253-54, 101 S.Ct. at 1093-94; McDonnell Douglas v. Green, 411 U.S. at 802, 93 S.Ct. at 1824.²⁹ The burden on the defendant at this phase is one of production rather than persuasion. E.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142, 120 S.Ct. at 2106; St. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747; Texas v. Burdine, 450 U.S. at 257, 101 S.Ct. at 1096.³⁰

29 See also, e.g., Schnabel v. Abramson, 232 F.3d at 88; Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Austin v. Ford Models, Inc., 149 F.3d at 152; Stein v. Trustees of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 104 F.3d at 1335; Chambers v. TRM, 43 F.3d at 38; Cobian v. New York City, 2000 WL 1782744 at *11; Austin v. Ford Models, Inc., 2000 WL 1752966 at *8; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 355-56; Lediju v. New York City Dep't of Sanitation, 173 F.R.D. at 114; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *12; Burger v. Litton, 1996 WL 421449 at *8.

30 See also, e.g., Austin v. Ford Models, Inc., 149 F.3d at 153; Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d at 1335; Cobian v. New York City, 2000 WL 1782744 at *11; Austin v. Ford Models, Inc., 2000 WL 1752966 at *8; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 356; Hernandez v. New York City Law Dep't, 1997 WL 27047 at *12; Burger v. Litton, 1996 WL 421449 at *8.

"Any legitimate, non-discriminatory reason will rebut the presumption triggered by the prima facie case." Fisher v. Vassar College, 114 F.3d at 1335-36.³¹ "'It is important to note . . . that although the McDonnell Douglas presumption shifts the burden of production to the defendant, "[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."'" Fisher v. Vassar College, 114 F.3d at 1335 (quoting St. Mary's v. Hicks, 509 U.S. at 507, 113 S.Ct. at 2747); accord, e.g., Reeves v. Sanderson Plumbing, 530 U.S. at 142-43, 120 S.Ct. at 2106.³²

31 Accord, e.g., Cobian v. New York City, 2000 WL 1782744 at *11; Austin v. Ford Models, Inc., 2000 WL 1752966 at *9; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 356.

32 See also, e.g., Cobian v. New York City, 2000 WL 1782744 at *11; Austin v. Ford Models, Inc., 2000 WL 1752966 at *9; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 3562.

If the defendant articulates a non-discriminatory reason, the McDonnell Douglas burden-shifting framework drops out of the picture. E.g, Reeves v. Sanderson Plumbing, 530 U.S. at 142-43, 120 S.Ct. at 2106; St. Mary's v. Hicks, 509 U.S. at 510, 113 S.Ct. at 2749; Texas v. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093-94.³³ "Moreover, although the presumption of discrimination 'drops out of the picture' once the defendant meets its burden of production, . . . the trier of fact may still consider the evidence establishing the plaintiff's prima facie case 'and inferences properly drawn therefrom . . . on the issue of whether the defendant's explanation is pretextual.'" Reeves v. Sanderson Plumbing, 530 U.S. at 143, 120 S.Ct. at 2106 (quoting Texas v. Burdine, 450 U.S. at 255 n. 10, 101 S.Ct. at 1095 n. 10).³⁴

33 See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 42; Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d at 1336; Cobian v. New York City, 2000 WL 1782744 at *12; Austin v. Ford Models, Inc., 2000 WL 1752966 at *9; Weber v. Parfums Givenchy, Inc., 49 F. Supp. at 356.

34 Accord, e.g., Cobian v. New York City, 2000 WL 1782744 at *12; Austin v. Ford Models, Inc., 2000 WL 1752966 at *9.

Just last term, the Supreme Court clarified the standard at this stage of the McDonnell Douglas analysis:

[I]n St. Mary's Honor Center, . . . we held that the factfinder's rejection of the employer's legitimate, nondiscriminatory reason for its action does not compel judgment for the plaintiff. The ultimate question is whether the employer intentionally discriminated, and proof that "the employer's proffered reason is unpersuasive, or even obviously contrived, does not necessarily establish that the plaintiff's proffered reason . . . is correct." In other words, "[i]t is not enough . . . to disbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination."

In reaching this conclusion, however, we reasoned that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . .

Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under Rule 50 [or Rule 56], and we have reiterated that trial courts should not "'treat discrimination differently from other ultimate questions of fact.'"

Whether judgment as a matter of law [or summary judgment] is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.

Reeves v. Sanderson Plumbing, 530 U.S. at 146-49, 120 S.Ct. at 2108-09 (emphasis added citations omitted).³⁵

35 Accord, e.g., Cobian v. New York City, 2000 WL 1782744 at *12-13; Austin v. Ford Models, Inc., 2000 WL 1752966 at *9-10.

After Reeves, the Second Circuit has made clear that merely proving a prima facie case and disproving the employer's explanation for its conduct at the third step of the McDonnell Douglas analysis will not preclude summary judgment in all cases; rather, a case-by-case analysis is necessary:

In examining the impact of Reeves on our precedents, we conclude that Reeves prevents courts from imposing a per se rule requiring in all instances that a [Title VII] claimant offer more than a prima facie case and evidence of pretext. . . . But the converse is not true; following Reeves, we decline to hold that no [Title VII] defendant may succeed on a summary judgment motion so long as the plaintiff has established a prima facie case and presented evidence of pretext. Rather, we hold that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a court examining the entire record to determine whether the plaintiff could satisfy his "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff."

Schnabel v. Abramson, 232 F.3d at 90 (emphasis added).³⁶

36 See also, e.g., Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 469-70 (2d Cir. 2001); James v. New York Racing Ass'n, 233 F.3d 149, 156-57 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d at 42 ("In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination."); Weiser v. Forest Pharm., Inc., 99 Civ. 1809, 2001 WL 293951 at *7-8 (S.D.N.Y. Mar. 26, 2001); Tanay v. Saint Barnabas Hosp., 99 Civ. 9215, 2001 WL 262695 at *4 (S.D.N.Y. Mar. 15, 2001); Bennett v. Watson, Wyatt Co., 00 Civ. 491, 2001 WL 267001 at *5 (S.D.N.Y. Mar. 14, 2001); Cobian v. New York City, 2000 WL 1782744 at *13; Austin v. Ford Models, Inc., 2000 WL 1752966 at *10; Connell v. Consolidated Edison Co., 109 F. Supp.2d 202, 207-08 (S.D.N.Y. 2000) (Chin, D.J.) ("The key is whether there is sufficient evidence in the record — whether it consists of just the prima facie case and proof of pretext alone or those items together with additional evidence — to support an inference of discrimination.").

Indeed, the Second Circuit and the District Court decisions within the Circuit continue to grant summary judgment to defendants in appropriate cases at the final McDonnell Douglas step, even after Reeves.³⁷

37 E.g., Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d at 470; James v. New York Racing Ass'n, 233 F.3d at 157; Weiser v. Forest Pharm., Inc., 2001 WL 293951 at *8; Tanay v. Saint Barnabas Hosp., 2001 WL 262695 at *9; Bennett v. Watson, Wyatt Co., 2001 WL 267001 at *12; Cobian v. New York City, 2000 WL 1782744 at *13; Austin v. Ford Models, Inc., 2000 WL 1752966 at *12-15; Trezza v. Dilenschneider Group, 99 Civ. 0185, 2000 WL 1702029 at *5-6 (S.D.N.Y. Nov. 14, 2000); Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *8-11 (S.D.N.Y. Nov. 9, 2000); Chudnovsky v. Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *8 (S.D.N.Y. Oct. 23, 2000); Cousins v. Howell Corp., 113 F. Supp.2d 262, 268-69 (D.Conn. 2000); Ekwegbalu v. Central Parking Sys., 97 Civ. 9477, 2000 WL 1371335 at *3-4 (S.D.N.Y. Sept. 22, 2000); Connell v. Consolidated Edison Co., 109 F. Supp. at 208-11; Lenhoff v. Getty, 97 Civ. 9458, 2000 WL 977900 at *5-6 (S.D.N.Y. July 17, 2000); Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 251 n. 12 (S.D.N Y 2000).

The Court therefore turns to the McDonnell-Douglas analysis of Gonzalez's claims and evidence.

B. Application of These Legal Standards to Gonzalez's Discrimination

Claim 1. Step 1: Gonzalez Has Not Established a Prima Facie Case Gonzalez asserted that he was charged, "demot[ed], suspended, and discriminat[ed]" against, while "others were not charged with similar violations because they were protected by Mr. W. Yost." (Compl. ¶¶ 4, 7.) Gonzalez alleges that other employees "were given more lenient penalties" than he was and that this is evidence of discrimination actionable under Title VII. (Gonzalez Aff. ¶ 2.) According to Gonzalez, the charges which resulted in his demotion "were unsubstantiated. It was more a personal matter with Mr. W. Yost — (Grudge held from '1988')." (Compl. ¶ 8.)

In opposition to the Transit Authority's summary judgment motion, Gonzalez submitted an appendix which includes stipulations of settlement in which nine accused Transit Authority employees in another division each accepted a thirty day suspension, a final warning, and a notation to this effect on their disciplinary records, in return for the resolution of the time-stealing charges against them. (See Gonzalez Aff.: Settlement Stips. for David Kolb; Ronald Sartini; Michael Magnus; Hope L. Morgan; James Nowinsky; Americo Guzzi; Oneil Turner; Joseph Rozas; Pushpal Bahumik.)

In response to Gonzalez's affirmation, the Transit Authority asserted:

Plaintiff has not and cannot prove that the individuals named [in Gonzalez's papers] were similarly situated. . . . [T]hese employees worked in a different department . . . and reported to different management. In addition, there is no reference to the race, color or national origin of the persons charged with theft of time at [the other] Facility. Consequently, plaintiff has even failed to raise facts that could establish that similarly situated, non-Hispanic employees at the [other] Facility were treated differently.

The Stipulations of Settlement annexed to the Inspector General's Report [attached to Gonzalez's affirmation] underscore the most dramatic difference between plaintiff's situation and the situation of those charged in the [other facility's] investigation. More specifically, all of the individuals investigated opted to settle with the Transit Authority in lieu of proceeding to a disciplinary hearing. . . . The Transit Authority clearly derived a benefit from entering into these stipulations of settlement, (i.e., respondents' admission of the charges and their waiver to a right to [a] hearing on the issues), which undoubtedly affected the recommended penalties.

. . . .

In contrast, plaintiff did not enter into a Stipulation of Settlement with the Transit Authority. The Transit Authority was compelled to try the matter, and an independent Administrative law Judge issued a decision in accordance with the facts presented that resulted in plaintiff's demotion.

(Dkt. No. 17:3/23/00 T.A. Letter at 2-3.)

In order to establish a prima facie case of disparate treatment discrimination in violation of Title VII, a plaintiff must show that: (1) he is a member of a protected class; (2) he satisfactorily performed the duties of his position; (3) he was subject to an adverse employment action; and (4) the adverse employment action occurred in circumstances giving rise to an inference of discrimination on the basis of his membership in that class. E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 2106 (2000); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).³⁸

38 See also, e.g., Tarstis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000); Carlton v. Mystic Transport., Inc., 202 F.3d 129, 134 (2d Cir.), cert. denied, 530 U.S. 1261, 120 S.Ct. 2718 (2000); Austin v. Ford Models, Inc., 149 F.3d 148, 152 (2d Cir. 1998); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.), cert. denied, 525 U.S. 1001, 119 S.Ct. 511 (1998); Grady v. Affiliated Central, Inc., 130 F.3d 553, 559 (2d Cir. 1997), cert. denied, 525 U.S. 936, 119 S.Ct. 349 (1998); Rankin v. Wyatt Co., 125 F.3d 55, 63-64 (2d Cir. 1997); Scalia v. Rubin, 117 F.3d 652, 653-54 (2d Cir. 1997); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *15 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *11 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.); Campbell v. Alliance National Inc., 107 F. Supp.2d 234, 243 (S.D.N.Y. 2000); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 356-57 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.).

"The burden of establishing a prima facie case is not onerous, and has been frequently described as minimal." Scaria v. Rubin, 117 F.3d at 654; accord, e.g., St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746-47 (1993); Schnabel v. Abramson, 232 F.3d at 87.³⁹

39 See also, e.g., Weinstock v. Columbia Univ., 224 F.3d at 42; Austin v. Ford Models, Inc., 149 F.3d at 152; Rankin v. Wyatt Co., 125 F.3d at 64; Chambers v. TRM Copy Ctrs. Corp., 43 F.3d at 32; Fisher v. Vassar College, 114 F.3d at 1335; Cobian v. New York City, 2000 WL 1782744 at *16; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 357.

It is undisputed that Gonzalez is a member of a protected class because he is Hispanic/Puerto Rican. (Compl. ¶ 7; T.A. Br. at 9.) It also is undisputed that Gonzalez suffered an adverse employment decision when he was suspended and demoted. (See pages 7-8 above.) Gonzalez met the qualifications for the supervisory position he held for approximately ten years until 1998, when he was demoted in light of the time-theft charges against him.

The Transit Authority focuses on step four of the prima facie test and contends that Gonzalez "has failed to prove and cannot establish that his demotion occurred under circumstances giving rise to an inference of discrimination. The evidence is undisputed that, in addition to plaintiff, several of his colleagues were found culpable of misconduct. In fact, of the four supervisors charged and disciplined for misconduct, three supervisors were white." (T.A. Br. at 9; see also 3/23/00 T.A. Letter at 2-3.)

First, Gonzalez's own allegations support granting summary judgment to the Transit Authority. Gonzalez essentially alleges that others were treated more leniently either because of their friendship with Yost or because of a "grudge" Yost held against Gonzalez, stemming from 1988 when Gonzalez allegedly left Yost "vulnerable" in front of a grievance hearing officer, unrelated to race or national origin. (Gonzalez Dep. at 82-83, 87; T.A. 56.1 Stmt. ¶ 9.) Gonzalez's own allegations expressly claim that any disparate treatment was due, not to discrimination, but to personal and professional animosity. See Gorley v. MetroNorth, 99 Civ. 3240, 2000 WL 1876909 at *7 (S.D.N.Y. Dec. 22, 2000) ("Even if [plaintiff's supervisor] did harbor personal animosity against plaintiff . . . Title VII provides relief only for racial discrimination, not fickleness."); Terry v. United States, 98 Civ. 8249, 2000 WL 204522 at *12 (S.D.N.Y. Feb. 18, 2000) ("the incidents plaintiff describes appear to be attributable to personal animosity, which is not actionable under federal discrimination statutes"); Gibson v. Brown, No. 97-CV-3026, 1999 WL 1129052 at *12 (E.D.N.Y. Oct. 19, 1999) ("'Personal animosity is not the equivalent of . . . discrimination and is not proscribed by Title VII. The plaintiff cannot turn a personal feud into a . . . discrimination case by accusation.'"), aff'd mem., 242 F.3d 365 (2d Cir. 2000); Baber v. Runyon, 97 Civ. 4798, 1998 WL 912065 at *7 (S.D.N.Y. Dec. 30, 1998) ("Personal animosity is not actionable discrimination."). Gonzalez's own allegations thus disprove his prima facie case. See, e.g., Wheeler v. Corporation Counsel, 93 Civ. 5184, 2000 WL 1760947 at *9 (S.D.N.Y. Nov. 30, 2000) (summary judgment granted for defendant in ADA case where "[p]laintiff's own testimony regarding [his alleged impairment] is telling", since plaintiff asserted he had "been performing all [his] duties above the norm").

Moreover, the Court cannot find that the other Transit Authority employees who Gonzalez points to were "similarly situated" to Gonzalez:

Employees are similarly situated in all material respects if there is an "'objectively identifiable basis for comparability' . . . a reasonably close resemblance of the facts and circumstances;" the situations of the individuals do not have to be identical. . . . A plaintiff must show that [he] and those "similarly situated" were subject to the same workplace standards and that plaintiff's conduct was of seriousness comparable to that of conduct which went undisciplined.

Ramos v. Marriott Int'l, Inc., 134 F. Supp.2d 328, ___ (S.D.N.Y. 2001); see also, e.g., Graham v. Long Island R.R., 230 F.3d 34, 39-40 (2d Cir. 2000) (A "plaintiff must show [he] was 'similarly situated in all material respects' to the individuals with whom [he] seeks to compare [himself. . . . [T]o satisfy [the] 'all material respects' standard for being similarly situated, a plaintiff must show that [his] co-employees were subject to the same performance evaluation and discipline standards . . . [and] that similarly situated employees who went undisciplined engaged in comparable conduct."); Norville v. Staten Island Univ. Hosp., 196 F.3d 89, 95 (2d Cir. 1999); Shumway v. United Parcel Servs., 118 F.3d 60, 64 (2d Cir. 1997); Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *29 (S.D.N Y Dec. 18, 2000) (Peck, M.J.) ( cases cited therein); Alston v. New York City Transit Auth., 97 Civ. 1080, 1999 WL 540442 at *6 (S.D.N.Y. July 26, 1999), aff'd mem., 208 F.3d 202 (2d Cir. 2000).

The supervisors who Gonzalez claims are comparable worked at another Transit Authority facility, and, more importantly, unlike Gonzalez, those supervisors admitted guilt and agreed to accept disciplinary action and suspension in return for a resolution of the charges against them. (See Gonzalez Aff., Settlement Stips.) Gonzalez, on the other hand, vigorously denied and fought the charges at an OATH hearing. (See pages 6-8 above.) An employee who agrees to settle misconduct charges is not similarly situated to one who contests the charges and is found guilty at an administrative hearing.

Gonzalez has failed to establish a prima facie case of discrimination.

2. Step 2: Assuming Arguendo that Gonzalez Stated a Prima Facie Case, the Transit Authority Met its Burden to State a Legitimate Non-Discriminatory Reason for its Actions Assuming arguendo that Gonzalez met the minimal requirements for establishing a prima facie case, the burden shifts to the Transit Authority to articulate a legitimate, non-discriminatory reason for Gonzalez's suspension and demotion. (See cases cited at pages 32-35 above.)

The Transit Authority contends that any adverse employment decisions that affected Gonzalez were business-related and had nothing to do with his race or national origin. (See T.A. Br. at 12-13.) The Transit Authority has provided evidence that it disciplined every employee and supervisor whom its investigation revealed was involved in the time-theft charges. (Id. at 3-5.) Clearly, disciplining employees who leave work early and get paid for such time (and supervisors who allow this to occur) is a legitimate, non-discriminatory reason, as long as the discipline is uniformly applied to all such employees. See, e.g., Sergilus v. Covenant House Under 21, 96 Civ. 6210, 1999 WL 717274 at * 1 (S.D.N.Y. Sept. 15, 1999) ("Theft is a legitimate, nondiscriminatory reason to discharge an employee."); Fierro v. Saks Fifth Avenue, 13 F. Supp.2d 481, 489 (S.D.N.Y. 1998) (summary judgment for employer where plaintiff failed to show discharge for minor theft was a pretext for discrimination).

With respect to Gonzalez's claim that he was disciplined more severely than other supervisors, the Transit Authority states that the difference in the extent of the discipline is that Gonzalez, unlike the other employees to whom he refers, did not stipulate to the charges, but rather disputed and denied them despite overwhelming evidence that he was permitting employees to leave work early. (See pages 6-8, 11-12, 32 above; see also Dkt. No. 18:4/24/01 Letter from Gonzalez at 1, asserting "I was investigated in 1998 with three other white supervisors but they admitted to their wrong doing; while I did not.") A lesser discipline for one who admits to wrongdoing than one who contests it and is found guilty at an administrative hearing is a non-pretextual reason. This Court may not second-guess an employer's non-discriminatory business decisions, regardless of their wisdom. See, e.g., Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001) (the Court should not act as a "super personnel departments" that second-guesses employer's business judgments); Tarshis v. Riese Org., 211 F.3d 30, 37 (2d Cir. 2000) ("Title VII . . . [does] not grant courts authority to second-guess the wisdom of corporate business decisions. . . ."); Mesnick v. General Elec. Co., 950 F.2d 816, 825 (1st Cir. 1991) ("Courts may not sit as super personnel departments, assessing the merits — or even the rationality — of employers' nondiscriminatory business decisions."), cert. denied, 504 U.S. 985, 112 S.Ct. 2965 (1992); Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988) ("[I]t is not the function of a fact-finder to second-guess business decisions . . . [unless] the employer's 'business decision' was so lacking in merit as to call into question its genuineness."); Scaria v. Rubin, 94 Civ. 333, 1996 WL 389250 at *8 (S.D.N.Y. July 11, 1996) (Peck, M.J.) ("an employer has discretion even to make a bad business decision . . ., so long as that decision is not motivated by discrimination"), aff'd, 117 F.3d 652 (2d Cir. 1997).⁴⁰

40 See also, e.g., Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *12 (S.D.N.Y. Nov. 29, 2000); Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *9, 10 (S.D.N Y Nov. 9, 2000) ("[A]bsent evidence of discrimination, it is not the province of the Court to sit as a super-personnel department that reexamines an entity's business decisions.") (internal quotations omitted); Ekwegbalu v. Central Parking Sys., 97 Civ. 9477, 2000 WL 1371335 at *3 (S.D.N.Y. Sept. 22, 2000) ("This is not a suit for wrongful discharge, but of employment discrimination. The jury cannot substitute its business judgment for that of the employer."); Lenhoff v. Getty, 97 Civ. 9458, 2000 WL 977900 at *6 (S.D.N.Y. July 17, 2000) ("even if [defendant's] decision to fire her was 'petty, mean [or] wrong,' . . . that does not make it illegal"); Williams v. Salvation Army, 108 F. Supp.2d 303, 311 (S.D.N.Y. 2000); Cardozo v. Healthfirst, 98 Civ. 3050, 1999 WL 782546 at *6 (S.D.N.Y. March 29, 1999) ("Defendant offers evidence that the decision to terminate Plaintiff was made for several business related (i.e., non-discriminatory) reasons. 'It is not the function of this Court to second-guess an employer's business decisions.'"); Berhanu v. New York State Ins. Fund, 91 Civ. 4956, 1999 WL 813437 at *13 (S.D.N.Y. Oct. 8, 1999); Roman v. Cornell Univ., 53 F. Supp.2d 223, 241 (N.D.N.Y. 1999); Mauro v. Southern New England Telecomm., 46 F. Supp.2d 181, 185 (D.Conn. 1999), aff'd, 208 F.3d 284 (2d Cir. 2000); Walsh v. United Cable Tech. Servs. Corps. Telecomm., Inc., 46 F. Supp.2d 170, 173 (D.Conn.), aff'd mem., 201 F.3d 434 (2d Cir. 1999); Ruane v. Continental Cas. Co., 96 Civ. 7153, 1998 WL 292103 at *11 (S.D.N.Y. June 3, 1998) ("Federal courts . . . do not sit as 'roving commission[s] to review business judgment.'"); Hansen v. Dean Witter Reynolds, Inc., 887 F. Supp. 669, 673 (S.D.N.Y. 1995); Gilman v. Runyon, 865 F. Supp. 188, 193 (S.D.N.Y. 1994) (The fact finder should not assess "whether the employer's decision was erroneous or even rational, so long as the employer's actions were not taken for a discriminatory reason."); Lamb v. Citibank, N.A., 93 Civ. 2358, 1994 WL 497275 at *6 (S.D.N.Y. Sept. 12, 1994) ("The court should 'refrain from intruding into an employer's policy apparatus or second-guessing a business's decisionmaking process.'"), aff'd mem., 122 F.3d 1056 (2d Cir. 1995), cert. denied, 517 U.S. 1188, 116 S.Ct. 1675 (1996).

The Transit Authority's articulated reasons for Gonzalez's suspension and demotion, and its explanation as to why supervisors who admitted guilt received a lesser discipline than Gonzalez, are sufficient to meet its burden of production at the second McDonnell Douglas step.

3. Step 3: Plaintiff Gonzalez's Burden to Show Pretext for Discrimination Once the defendant carries its burden of production by articulating legitimate, non-discriminatory reasons for its actions, as the Transit Authority has done here, "[t]he plaintiff then has 'the full and fair opportunity to demonstrate, . . . that the proffered reason was not the true reason for the employment decision,'" but was in fact a pretext for discrimination. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08, 113 S.Ct. 2742, 2747

(1993).⁴¹ "[T]he plaintiff, in order to defeat summary judgment, must present evidence sufficient to allow a rational factfinder to infer that the employer was actually motivated in whole or in part by . . . discrimination." Grady v. Affiliated Central, Inc., 130 F.3d 553, 560 (2d Cir. 1997), cert. denied, 119 S.Ct. 349 (1998).⁴² "In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, '[i]t is not enough . . . to disbelieve the employer; the factfinder must [also] believe the plaintiff's explanation of intentional discrimination.'" Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) (alterations in original); accord, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *12. Gonzalez does not dispute that time-theft was a prohibited and punishable act.

41 Accord, e.g., Economou v. Caldera, 99 Civ. 12117, 2000 WL 1844773 at *26 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.); Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *12 (S.D.N Y Dec. 6, 2000) (Peck, M.J.); Austin v. Ford Models, Inc., 95 Civ. 3731, 2000 WL 1752966 at *12 (S.D.N.Y. Nov. 29, 2000) (Peck, M.J.); Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d 343, 358 (S.D.N.Y. 1999) (Wood, D.J. Peck, M.J.); Scaria v. Rubin, 94 Civ. 3333, 1996 WL 389250 at *9 (S.D.N.Y. July 11, 1996) (Peck, M.J.), aff'd, 117 F.3d 652 (2d Cir. 1997); see also cases cited at pages 25-30 above.)

42 Accord, e.g., Danzer v. Norden Sys., Inc., 151 F.3d 50, 54 (2d Cir. 1998); Norton v. Sam's Club, 145 F.3d 114, 118 (2d Cir.), cert. denied, 119 S.Ct. 511 (1998); Austin v. Ford Models, Inc., 2000 WL 1752966 at *12; Economou v. Caldera, 2000 WL 1844773 at *13; Cobian v. New York City, 2000 WL 1782744 at *8; Weber v. Parfums Givenchy, Inc., 49 F. Supp.2d at 358; see, e.g., St. Mary's v. Hicks, 509 U.S. at 515, 113 S.Ct. at 2752 (a proffered "reason cannot be proved to be 'a pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason"); Scaria v. Rubin, 117 F.3d at 654; Fisher v. Vassar College, 114 F.3d 1332, 1339 (2d Cir. 1997) (en banc), cert. denied, 522 U.S. 1075, 118 S.Ct. 851 (1998); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994); see also cases cited at pages 27-29 above.

Other T.A. employees and supervisors also were investigated and disciplined in connection with the submission of false time reports. (See pages 4-6 above.) While Gonzalez alleged conclusorily that he believed "friends of Yost" who committed the same offense were not investigated or disciplined as harshly (see, e.g., 4/24/01 Gonzalez Letter at 2), Gonzalez failed to submit any evidence to support this allegation and did not specify the national origin of those allegedly treated "leniently." As to the supervisors who received lesser disciplinary penalties, Gonzalez failed to submit evidence of supervisors who were similarly situated to him, i.e., who challenged the charges as he did, but who nonetheless received a lesser penalty. Although Gonzalez alleges that "[i]n my own personal experiences I have seen and felt that the NYCTA holds African Americans and Hispanics to a higher standard when it concerns rules and regulations" (4/24/01 Gonzalez Letter at 3), "[c]onclusory allegations made by the Plaintiff of (alleged) discriminatory conduct are insufficient to avoid summary judgment." Cardozo v. Healthfirst, 98 Civ. 3050, 1999 WL 782546 at *8 (2d Cir. March 29, 1999).⁴³

43 See also, e.g., Budde v. HK Distrib. Co., 99 Civ. 9949, 2000 WL 900204 at *1 (2d Cir. June 29, 2000); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.) ("[C]onclusory allegations of discrimination are insufficient to satisfy the requirements of Rule 56(e). . . . To allow a party to defeat a motion for summary judgment by offering purely conclusory allegations of discrimination, absent any concrete particulars, would necessitate a trial in all Title VII cases. Given the ease with which these suits may be brought and the energy and expense required to defend such actions, we believe the trial judge properly granted summary judgment."), cert. denied, 474 U.S. 829, 106 S.Ct. 91, (1985); Austin v. Ford Models, Inc., 2000 WL 1752966 at *13; Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *11 (S.D.N.Y. Nov. 9, 2000); Alston v. New York City T.A., 97 Civ. 1080, 1999 WL 540442 at *7 (S.D.N.Y. July 26, 1999) ("'The most probative means of proving pretextual discharge is to demonstrate that similarly situated . . . employees were treated differently' . . . [but] mere conclusory allegations of discrimination are insufficient to meet this burden."), aff'd mem., 208 F.3d 202 (2d Cir. 2000); Adeniji v. Administration for Children's Services, 43 F. Supp.2d 407, 423 (S.D.N.Y.) (Peck, M.J.) (citing cases), aff'd mem., 201 F.3d 430 (2d Cir. 1999).

Thus, Gonzalez has not submitted any evidence of disparate treatment of similarly situated employees. Accordingly, Gonzalez has not shown that Transit Authority's explanation for why Gonzalez was demoted and suspended was a pretext, much less that it was a pretext for discrimination based on national origin (or race or color).

The Second Circuit has "h[e]ld that the Supreme Court's decision in Reeves clearly mandates a case-by-case approach, with a [district] court examining the entire record to determine whether the plaintiff could satisfy his 'ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff.'" Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000); see Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146-48, 120 S.Ct. 2097, 2108-09 (2000); see also pages 27-30 above.

Here, there were no discriminatory remarks to or about Gonzalez or anyone else. See, e.g., Grady v. Affiliated Cent., Inc., 130 F.3d 553, 561 (2d Cir. 1997), (affirming summary judgment for defendants where plaintiff was unable to point to any statement by anyone that was discriminating in nature), cert. denied, 525 U.S. 936, 119 S.Ct. 349 (1998); Austin v. Ford Models, Inc., 2000 WL 1752966 at *14 (citing cases). Gonzalez's prima facie case is weak (if not non-existent); the Transit Authority's explanation of its conduct is strong; and Gonzalez's evidence simply does not create an inference of discrimination sufficient to defeat defendant's summary judgment motion. E.g., Norton v. Sam's Club, 145 F.3d 114, 119 (2d Cir.) (Plaintiff's "very weak prima facie case, combined with an at best highly dubious showing of pretext, that in itself does not implicate discrimination, is simply not enough to support the jury's conclusion that he was fired because of his age."), cert. denied, 525 U.S. 1001, 119 S.Ct. 511 (1998).⁴⁴

44 See also, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *15; Faldetta v. Lockheed Martin Corp., 98 Civ. 2614, 2000 WL 1682759 at *11 (S.D.N.Y. Nov. 9, 2000); Chudnovsky v. Prudential Sec., Inc., 98 Civ. 7753, 2000 WL 1576876 at *9 (S.D.N.Y. Oct. 23, 2000); Simmons v. ATT, Inc., 96 Civ. 2844, 1998 WL 751659 at *8 (S.D.N.Y. Oct. 28, 1998), aff'd mem., 182 F.3d 901 (2d Cir. 1999).

As the Court stated in granting summary judgment for defendants in a Title VII case:

To invoke the protections of Title VII, an employee must have been subjected to discrimination. A plaintiff who could have been subjected to discrimination by virtue of being a member of a protected class, but was not, could reap an unwarranted windfall if her Title VII claim survives summary judgment in the absence of any proof of discrimination. Title VII, an important statute, must not be exploited and diluted as a result of misuse and misapplication by disgruntled employees who happen to be members of a protected class.

Campbell v. Alliance Nat'l Inc., 107 F. Supp.2d 234, 251 (S.D.N.Y. 2000); accord, e.g., Austin v. Ford Models, Inc., 2000 WL 1752966 at *15.

The Court should grant the Transit Authority summary judgment on Gonzalez's discrimination claim.

C. The Transit Authority Should Be Awarded Summary Judgment on Gonzalez's Title VII Retaliation Claim In his complaint, Gonzalez alleges "Retaliation (4/88)" as part of his Title VII claim. (Compl. ¶ 4.) The Transit Authority has moved for summary judgment alleging that Gonzalez has not established a prima facie case of retaliation. (T.A. Br. at 16-17.)

Title VII retaliation claims also are governed by the McDonnell Douglas burden-shifting analysis. See, e.g., Sotolongo v. New York City T.A., No. 99-9195, 216 F.3d 1073 (table), 2000 WL 777958 at *2-3 (2d Cir. June 15, 2000); Economou v. Caldera, 99 Civ. 12117, 2000 WL 184473 at *25 (S.D.N.Y. Dec. 18, 2000) (Peck, M.J.); Adeniji v. Administration for Children's Servs., 43 F. Supp.2d 407, 428 (S.D.N.Y.) (Wood, D.J. Peck, M.J.), aff'd mem., 201 F.3d 430 (2d Cir. 1999).

"In order to make out a prima facie case of retaliation, a plaintiff must show by a preponderance of the evidence (i) participation in a protected activity known to the defendant; (ii) an employment action disadvantaging the plaintiff; and (iii) a causal connection between the protected activity and the adverse employment action." Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir. 1995).⁴⁵

45 Accord, e.g., Gallagher v. Delaney, 139 F.3d 338, 349 (2d Cir. 1998); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996); Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033, 1039 (2d Cir. 1993); Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 64 (2d Cir. 1992); see also, e.g., Cobian v. New York City, 99 Civ. 10533, 2000 WL 1782744 at *16 (S.D.N.Y. Dec. 6, 2000) (Peck, M.J.) ( cases cited therein); Adeniji v. Administration for Children's Servs., 43 F. Supp.2d at 419.

Gonzalez's retaliation claim is based on his belief that Yost harbored a "grudge" against him for Gonzalez's conduct at a 1988 grievance proceeding allegedly placed Yost's job in jeopardy. (See pages 4,10 above.) A Title VII retaliation claim, however, is dependent upon participation in a "protected activity," such as making a formal or even informal complaint of discrimination. See, e.g., Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) ("The term 'protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination."); Ramsey v. New York City Health Hosps. Corp., 98 Civ. 1594, 2000 WL 713045 at *11 (S.D.N.Y. June 2, 2000) (quoting Cruz). A union grievance hearing about overtime pay, unrelated to discrimination, is simply not a Title VII "protected activity" that could give rise to a cognizable Title VII retaliation claim. See, e.g., Tone v. United States Postal Serv., No. 99-6309, 242 F.3d 368 (table), 2000 WL 1836764 at *3 (2d Cir. Dec. 13, 2000) ("[T]he ability to file grievances is not a protected activity under Title VII."); Wheeler v. Corporation Counsel, 93 Civ. 5184, 2000 WL 1760947 at *12 (S.D.N.Y. Nov. 30, 2000) ("[P]laintiff fails to establish that he engaged in a protected activity. Plaintiff did file a [grievance, but] . . . [i]t does not appear from the record, however, that this claim included any charge of discrimination.").⁴⁶

46 Gonzalez cannot argue that his discipline was the result of his SDHR filing, since the May 4, 1999 OATH Report Recommendation occurred before his May 10, 1999 filing with the SDHR. See Gregory v. Daly, No. 00-7077, 2001 WL 406338 at *13 (2d Cir. Apr. 20, 2001) ("Of course, in examining the sufficiency of [plaintiff]'s pleadings of retaliation, we must omit from consideration those episodes . . . that preceded h[is] protected activity (i.e. [his] workplace complaints and state court law suit), since prior harassment could not have been in retaliation for acts not yet taken."); see also pages 44-45 above.

Moreover, the passage of ten years between the conduct giving rise to the "grudge" and the alleged retaliatory act rebuts any inference of causation. See, e.g., Clark County School Dist. v. Breeden, No. 00-866, 2001 WL 402573 (U.S. Apr. 23, 2001) ("Action taken . . . 20 months later suggests, by itself, no causality at all."); McNair v. NYC Health Hosp. Co., 99 Civ. 10681, 2001 WL 345224 at *2 (S.D.N.Y. Apr. 9, 2001) ("conduct, occurring almost three years after the date of [plaintiff]'s protected activity, is too far removed from [plaintiff]'s protected activities to support an inference of a causal connection under Title VII."). Accordingly, Gonzalez's Title VII retaliation claim fails and the Transit Authority should be awarded summary judgment on the retaliation claim.

CONCLUSION

For the reasons set forth above, the Court should grant summary judgment to defendants dismissing the complaint.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Sidney H. Stein, 500 Pearl Street, Room 1010, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Stein. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S.Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S.Ct. 825 (1992); Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).