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April 1, 1998



The opinion of the court was delivered by: CARTER


ROBERT L. CARTER, District Judge

 Following a verdict in favor of plaintiff Philjay Alston ("Alston") on a federal claim, the defendant New York City Transit Authority ("NYCTA") moves for judgment as a matter of law or as against the weight of the evidence, pursuant to Rule 50, F. R. Civ. P.; or, in the alternative, defendant moves for a new trial or remittitur, pursuant to Rule 59, F. R. Civ. P.

 I. Background

 Plaintiff, a black, female bus driver with the NYCTA, was involved in a bus on bus accident on October 21, 1994, with a white, male bus driver. Following investigation by a white, male dispatcher, plaintiff was sent for drug and alcohol testing while the other bus driver was not, even though plaintiff was later found to be without fault for the accident. (Tr. at 150). On November 14, 1994, plaintiff filed a complaint with defendant's internal Equal Employment Office ("EEO") charging that the NYCTA discriminated against her by treating her differently than the bus driver with whom she had collided in October. *fn1"

 On December 12, 1994, plaintiff was involved in another bus accident, her fourth in 1994. After the December accident, plaintiff was sent to driver retraining class and then given unannounced "investigative check-rides" meaning that NYCTA representatives rode on her bus and evaluated her driving performance. Plaintiff failed her first two check-rides on May 17 and July 21, 1995, but passed her third check-ride on August 29, 1995. As a result of her successful third check-ride, any disciplinary penalties for failing the first two check-rides were waived and no further check-rides were scheduled for plaintiff.

 In March, 1995, NYCTA formulated a list that included plaintiff's name among approximately 100 bus drivers with multiple accidents and poor operating records. After receipt of a Freedom of Information Act ("FDIA") request from a New York Post reporter, NYCTA released the list to the newspaper on or about May 3, 1995. The list was subsequently published under the title of the worst bus drivers in New York. (Pl.'s Mem. of Law in Opp. at 4).

 As a result of these incidents, plaintiff filed a complaint against defendant for sex and race discrimination and retaliation with the federal Equal Employment Opportunity Commission ("EEOC") on June 16, 1997. On September 26, 1997, plaintiff also sued the NYCTA alleging race and sex discrimination in violation of both Title VII of the Civil Rights Act of 1964, as amended 42 U.S.C. §§ 2000(e) et. seq. ("Title VII") and New York Executive Law § 296 (the "Human Rights Law"). Plaintiff's complaint also charged defendant with the failure to grant her employment terms and conditions equal to other employees because of her race, in violation of 42 U.S.C. § 1981. Finally, plaintiff alleged that retaliatory actions were taken against her in violation of Title VII.

 Specifically, Alston claimed that she was sent for retraining, placed on the 100 worst drivers list, given check-rides, and subjected to random drug tests *fn2" due to her complaints and litigation against NYCTA. (Pl. Trial Mem. of Law at 13). The stress from the original incident as well as from the retaliation, plaintiff claimed, caused her to suffer on-going mental and emotional distress, headaches, neck and shoulder problems, and anxiety, among other symptoms. (Pl.'s Mem. of Law at 5).

 On January 20, 1998, the case went to trial before a jury. On January 23, 1998, after a 3-day jury trial and one day of deliberations, the jury returned a verdict. The jury found that defendant unlawfully retaliated against plaintiff for filing her EEO and EEOC complaints and awarded Alston $ 250,000 in compensatory damages. *fn3" The NYCTA was found not liable for discrimination against plaintiff on the basis of race or sex.

 II. Judgment as a Matter of Law

 The NYCTA moves for judgment as a matter of law, pursuant to Rule 50(b), F. R. Civ. P., with respect to Alston's retaliation claim. A motion for judgment as a matter of law may be granted when "'(1) there is such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture, or (2) there is such an overwhelming amount of evidence in favor of the movant that reasonable and fair minded men could not arrive at a verdict against him.'" Haskell v. Kaman Corp., 743 F.2d 113, 120 (2d Cir. 1984)(quoting Mattivi v. South African Marine Corp., 618 F.2d 163, 168 (2d Cir. 1980)). In considering the Rule 50(b) motion, "the district court is required to consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence." Maguire Co., Inc. v. Herbert Constr. Co., 945 F. Supp. 72, 74 (S.D.N.Y. 1996)(Carter, J.). In so doing, however, "'the trial court cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury.'" Katara v. D.E. Jones Commodities, Inc., 835 F.2d 966, 970 (2d Cir. 1987)(quoting Mattivi, 618 F.2d at 167-68)).

 The NYCTA maintains that it is entitled to judgment as a matter of law because plaintiff did not establish a prima facie case of retaliation. In order to establish a prima facie case, plaintiff must show that: (1) she was engaged in statutorily protected activity; (2) her employer was aware of the protected activity; 3) she suffered adverse employment actions; and 4) a causal connection exists between the adverse employment actions and the protected activity. See Wanamaker v. Columbian Rope Co., 108 F.3d 462 (2d Cir. 1997).

 While not disputing that plaintiff's filing of the EEO and EEOC complaints was protected activity in accordance with the first prong of a prima facie case, the NYCTA argues that Alston failed to establish the remaining three prongs. Specifically, defendant avers that Alston did not show that the individuals who took the adverse action against her knew of her filed complaints, that Alston did not suffer any adverse employment action, and that she has not proven a causal connection between the adverse action and the ...

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