this Court must determine whether either cross-movant is entitled to judgment as a matter of law.
Summary judgment is appropriate in this § 1983 action because plaintiff cannot show that an impermissible municipal custom or policy led to the derogation of his constitutional rights as required by Monell v. New York City Dep't of Social Servs., 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978). According to Monell, a municipality is not subject to liability under § 1983 on a respondeat superior theory; thus, a municipality will only be liable for the actions of its employees or agents when they act "pursuant to [an] official municipal policy of some nature . . . ." Id. at 691, 694. The Court subsequently established that a municipal policy could only be established by a "final policymaking authority," which is to be determined based on state law. St. Louis v. Praprotnik, 485 U.S. 112, 123, 99 L. Ed. 2d 107, 108 S. Ct. 915 (1988) (citing Pembaur v. Cincinnati, 475 U.S. 469, 483, 89 L. Ed. 2d 452, 106 S. Ct. 1292 (1986) (plurality opinion)). In refining Pembaur, the Praprotnik Court held that the finality aspect of a policy meant that "when an official's discretionary decision are constrained by policies not of that official's making, those [municipal] policies, rather than the subordinate's departures from them, are the act of the municipality." Praprotnik, 485 U.S. at 127.
Based on the foregoing legal standards, it is clear that defendants are entitled to summary judgment as a matter of law. Plaintiff cannot demonstrate that the TAB followed an impermissible municipal custom or policy at the arbitration proceeding leading to the alleged constitutional tort. First, in ruling on defendants' motion to dismiss, this Court "instructed [plaintiff] to refile his complaint . . . and to allege precisely what 'policy or custom' of the NYCTA caused him to be deprived of his federal rights under Section 1983." Mem. & Order at 6-7. Pursuant to that instruction, plaintiff filed an amendment to the complaint. However, that amendment fails to state an identifiable "policy or custom" that would subject the NYCTA defendants to liability under § 1983. Plaintiff simply alleges that "the defendants repeatedly adhered to the impermissible custom of negating written specified regulations, policy and/or contractual agreements; . . . inevitably leading to the  deprivation of [plaintiff's] federal rights. Amended Complaint at 2, PP I-II.
This allegation, however, does not yield liability against the NYCTA defendants under § 1983 because the TAB does not possess "final policymaking authority." The TAB is required to follow NYCTA regulations. Its authority derives from a Collective Bargaining Agreement ("CBA") between the NTCTA and the TWU, plaintiff's union. According to the CBA:
The [TAB], in rendering any opinion or determination shall be strictly limited to the interpretation and application of the provisions of this [CBA] or of any written rule or Policy/Instruction of the [NYCTA] governing or affecting hourly paid employees and it shall be without any power or authority to add to, delete from or modify any of the provisions of this [CBA], or of such rules, or Policy/Instructions.
Defs' Memo. of Law at 5 (citing CBA, Article II, § 2.1(C)(d)) (emphasis added). Thus, the TAB is not a final policymaking authority of the NYCTA for Monell purposes.
In fact, all the rules and regulations annexed to plaintiff's Amended Complaint indicate that the policy of the NYCTA defendants is to prevent discrimination against employees and to protect employee rights -- not to promote disregard of the NYCTA's formal, official policies. Thus, as there are no triable issues of fact, the NYCTA defendants are entitled to summary judgment on the § 1983 claim.
Plaintiff and defendant NYCTA cross-move for summary judgment on the Title VII retaliatory discharge claim. Summary judgment is appropriate in a discrimination case if the familiar Rule 56 standard is met. Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985). As stated above, if the plaintiff exhibits "a complete failure of proof concerning an essential element of [his] case . . .," Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986), summary judgment must be entered for the defendant. In a Title VII action, "the ultimate burden of persuading the trier of fact that the defendants intentionally discriminated against the plaintiff remains at all times with the plaintiff. Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089 (1981). Thus, summary judgment must be entered for defendant NYCTA if this Court determines that plaintiff completely fails to carry his burden on the retaliatory discharge claim.
The trifurcated analysis for Title VII cases is well established. As the Supreme Court stated in Burdine:
First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff [makes this showing], the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." . . . Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
450 U.S. at 252-53 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 804, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)).
In this case, it is unnecessary to determine whether plaintiff has made a prima facie showing of retaliatory discharge, see, e.g., DeCintio v. Westchester County Medical Ctr., 821 F.2d 111, 115 (2d Cir.), cert. denied, 484 U.S. 965, 98 L. Ed. 2d 395, 108 S. Ct. 455 (1987); Thermidor v. Beth Israel Medical Ctr., 683 F. Supp. 403, 410-11 (S.D.N.Y. 1988),
because, even assuming that he has made the requisite showing, it is clear that defendant NYCTA has articulated a "legitimate, nondiscriminatory reason" for plaintiff's termination -- i.e, his insubordination and chronic absenteeism. In turn, plaintiff has failed to demonstrate that the stated reason is pretextual "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Long v. A.T. & T. Info. Sys., Inc., 733 F. Supp. 188, 200 (S.D.N.Y. 1990) (quoting Burdine, 450 U.S. at 256) (emphasis added). Under these circumstances, summary judgment in favor of the NYCTA is warranted. See, e.g., Smith v. American Express Co., 853 F.2d 151, 154-55 (2d Cir. 1988) (while summary judgment is ordinarily inappropriate where plaintiff makes a prima facie showing of discrimination, it is appropriate where plaintiff cannot sustain his burden of demonstrating that the employer's proffered explanation is pretextual); but cf. Maresco v. Evans Chemetics, 964 F.2d 106, 114 (2d Cir. 1992) (reversing summary judgment for employer where facts supporting plaintiff's prima facie case of age discrimination would also support his claim that employer's proffered non-discriminatory reason was pretextual).
This Court has already noted that:
It is quite clear to this Court that the plaintiff claims that the defendant terminated his employment as retaliation for the plaintiff's efforts to "seek redress " for the defendant's alleged "discriminatory disciplinary acts." Undoubtedly, the plaintiff refers here to the complaint he filed with the EEOC prior to his termination. That is, the plaintiff alleges -- quite cogently, to the mind of this court -- that the defendant fired him because he had complained to the EEOC about . . . what the plaintiff concluded was discriminatory conduct by the defendant against him. Termination by reason of such retaliation is actionable under Title VII of the Civil Rights Act of 1964. 42 U.S.C. § 2000e-3(a).
Mem. & Order at 7-8.
The augmented record before this Court now reveals that plaintiff was fired because of a pattern of absenteeism and flagrant disregard for NYCTA rules. See TAB Op. at 4;
Determination of EEOC, Charge Number 160-90-0213 ("EEOC Complaint I"), dated June 4, 1990 (Exh. K to Defs' 3(g) Statement) (noting that plaintiff had disciplinary problems as far back as 1987 and that he was removed from his position in 1989 for thrice violating NYCTA policies in a thirty day period); Letter of Joyce Rachel Ellman to EEOC in response to EEOC Complaint I, dated Feb. 9, 1990 and exhibits thereto (Exh. J to Defs' 3(g) Statement) (outlining disciplinary measures taken against plaintiff in 1987, 1988 and 1989 for insubordination and chronic lateness and absenteeism before he filed his first EEOC complaint). In the absence of a showing of pretext, an employer's summary judgment motion on a Title VII claim may be granted where an employee is dismissed based on the employee's unsatisfactory work record. See, e.g., Thermidor, 683 F. Supp. at 412-14 (S.D.N.Y. 1988) (granting summary judgment for defendant employer because "plaintiff in the instant case has failed to demonstrate that defendants' well-documented claim of unsatisfactory job performance was mere pretext for discriminatory termination.").
Furthermore, plaintiff's conclusory allegations of discrimination are insufficient to withstand the defendant NYCTA's cross-motion for summary judgment under Fed. R. Civ. P. 56(e). Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74, 106 S. Ct. 91 (1985); see also Smith v. American Express Co., 853 F.2d 151, 154-55 (2d Cir. 1988). Rule 56(e) mandates that an adverse party not rest on the pleadings, but must respond to a properly supported summary judgment motion with affidavits that set forth specific facts showing that there is a genuine issue for trial.
Plaintiff initially moved for summary judgment without supporting affidavits. At that time, he submitted a memorandum of law which does not set forth any facts in dispute, but only contests the TAB decision. To date, plaintiff has still not submitted any affidavits to challenge the NYCTA's cross-motion for summary judgment despite being granted the opportunity to do so. See Order of this Court, dated August 20, 1992 (incorporating plaintiff's representation to Magistrate Judge Caden that he does not wish to respond to the cross-motions for summary judgment). Therefore, based on the augmented record, this Court concludes that there are no genuine issues of triable fact to preclude summary judgment for defendant NYCTA. Plaintiff has simply not shown that the NYCTA acted under pretext when it discharged him based on his poor work record. Similarly, plaintiff has failed to offer any factual support for his conclusory assertion that anyone at the NYCTA discriminated against him in the grievance process by upholding the recommendation that he be terminated. Thus, while plaintiff claims that he was wrongfully discharged in violation of Title VII, his moving papers fail to present any facts to satisfy his burden of proof at trial on that claim. Accordingly, defendant NYCTA is entitled to summary judgment "as a matter of law" in Sewell II.
For the foregoing reasons, plaintiff's summary judgment motion is denied in Sewell I and Sewell II; the NYCTA defendants' cross-motion for summary judgment is granted in Sewell I; Sewell I is dismissed as against the unnamed individual defendants; and the NYCTA's cross-motion for summary judgment is granted in Sewell II.
Dated: Brooklyn, New York
December 30th, 1992
I. Leo Glasser, U.S.D.J.