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June 12, 2000


The opinion of the court was delivered by: Mordue, District Judge.



Defendant moves for summary judgment dismissing this employment discrimination action.


Plaintiff, a black man, was first employed by defendant as a part-time bus operator on August 19, 1988. On February 9, 1990, he was promoted to full-time bus operator. Subsequently, plaintiff applied for and was offered the position of part-time relief supervisor and, between June 28, 1993, and October 3, 1993, he was trained for the positions of "outside supervisor" and "inside supervisor." As of October 3, 1993, he was fully trained for the position of "full-time relief supervisor." According to defendant, during this training period, plaintiff continued in his position as full-time bus operator and assumed supervisory duties on an as-needed basis.

Plaintiff claims that between June 28, 1993, and December 7, 1994, he was subjected to numerous incidents of racial harassment. Plaintiff's papers show that he made numerous verbal and written complaints to his superiors, and that on December 7, 1994, after he submitted to defendant a written complaint alleging harassment, he was demoted from the position of part-time relief supervisor and later denied a promotion to outside part-time supervisor.

In April 1995, plaintiff filed an administrative complaint with the New York State Division of Human Rights ("DHR"), alleging that he had been demoted from his position as part-time supervisor because of his race. On October 22, 1997, DHR issued a Determination and Order After Investigation finding "no probable cause" that Centro had engaged in unlawful discrimination, specifically finding: "Investigation revealed that complainant was demoted from his job as supervisor because he made excessive errors. Investigation did not reveal whites similarly situated who were differently treated."

Plantiff's DHR complaint was co-filed with the federal Equal Employment Opportunity Commission ("EEOC"). On December 1, 1997, EEOC issued a Right to Sue Letter concluding that "the evidence obtained during the investigation does not establish violations of the statute."

Plaintiff filed the complaint herein on March 3, 1998, setting forth causes of action for racial discrimination and retaliation in connection with his demotion pursuant to Title VII (42 U.S.C. § 2000e), section 1981 (42 U.S.C. § 1981) and New York Human Rights Law (New York Executive Law, §§ 290-301); hostile work environment under Title VII; and a New York common law claim for intentional infliction of emotional distress.


Standard for summary judgment

A party seeking summary judgment must demonstrate 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). The moving party bears the initial burden of "informing the . . . court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed. R.Civ.P. 56(c)).

The nonmoving party may defeat the summary judgment motion by producing sufficient evidence to establish a genuine issue of material fact for trial. See id. at 322, 106 S.Ct. 2548. The test for existence of a genuine dispute is whether a reasonable juror could find for the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The opposition may not rest on mere allegations or denials of the moving party's pleading, but "must set forth specific facts showing that there is a genuine issue for trial." Fed. R.Civ.P. 56(e).

As stated by the Second Circuit in Danzer v. Norden Systems, Inc., 151 F.3d 50, 54 (2d Cir. 1998) (citations omitted):

As recent discrimination cases of our court have made clear, summary 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.

In ruling on a motion for summary judgment, the Court must resolve all ambiguities and draw all reasonable inferences in favor of the nonmoving party. See Donahue v. Windsor Locks ...

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