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January 23, 2002


The opinion of the court was delivered by: Lawrence E. Kahn, United States District Judge.


Plaintiff alleges employment discrimination, asserting hostile work environment, racial discrimination, and retaliation claims pursuant to 42 U.S.C. § 1981 and the Human Rights Law set forth in New York Executive Law § 290, et seq. Presently before the Court is Defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth herein, Defendant's motion is GRANTED in part and DENIED in part.


Plaintiff's employment with defendant Amtrak began in October, 1986, when he was hired as a Lead Service Attendant. On April 30, 1987, he was promoted to Assistant Conductor. In 1988, he was promoted to the position of Locomotive Engineer for the Train and Engine Service ("T & E Service"), and began working out of the Albany/Rensselaer crew base, in what is designated as "Zone 3" of Amtrak's Empire Service Line. The T & E Service is comprised of locomotive engineers, conductors, and assistant conductors. With the exception of Plaintiff, all of the engineers at Zone 3 were white. Plaintiff remained employed by Defendant until his suspension on August 16, 1995, and subsequent termination effective January 26, 1996.

Amtrak provides free and reduced travel rates for its employees, their spouses, and their dependent children. Plaintiff was issued a rail travel privilege pass ("rail pass"), which allowed Plaintiff and his authorized dependents to ride for free on certain Amtrak passenger trains. Upon receipt of the rail pass, Plaintiff received written instructions setting forth the "Conditions of Use" of his rail pass. (Def. Ex. 4, Turner dep. at 183-188). According to the Conditions of Use "[it is] an Act of Larceny to Abuse your pass privilege or for anyone to willfully permit its misuse."

On August 16, 1995, due to an approaching hurricane, Amtrak's long distance service south from New York was canceled. This required Amtrak to re-route passengers traveling southward. In order to assist passengers, Amtrak's Manager of Customer Service at the Albany / Rensselaer Station, William Hollister, reviewed the passenger manifests for trains that left Albany earlier that day. While reviewing the manifests, Hollister noticed Plaintiff's name listed as a passenger on a train en route from Albany, New York to New York City, and then on to South Carolina. Knowing that Plaintiff was scheduled to work that day, Hollister wondered who was traveling under Plaintiff's rail pass. Hollister called New York and requested that the group of passengers traveling under Plaintiff's rail pass be escorted to Amtrak's customer service office in New York's Penn Station upon their arrival.

Amtrak investigated Plaintiff for alleged violations of Amtrak's Rules of Conduct. On August 21, 1995, Amtrak specifically alleged that Plaintiff "permitted and assisted unauthorized individuals to use [his] Rail Travel Privileges to obtain transportation on Amtrak resulting in a loss of revenue for the corporation." (Defendant's exhibit 11-13). On November 9, 1995, an administrative hearing was convened by a hearing officer in Amtrak's Office of Disciplinary Investigations concerning the alleged administrative charges against Plaintiff. The case against Plaintiff involves three instances of unauthorized travel. The hearing resulted in a finding that Plaintiff abused his Rail Travel privileges, defrauding Amtrak of potential revenues in excess of $1,300. Effective January 26, 1996, Plaintiff was terminated from his employment with Amtrak by the Director of Amtrak's Empire Service Products Line, J. Wesley Coates, Jr. Plaintiff appealed his dismissal to the Director of Labor Relations, and that appeal was denied on March 18, 1996.

Plaintiff commenced this lawsuit on January 25, 1999, alleging discrimination, hostile work environment, and retaliatory termination. Plaintiff contends that his removal from service on August 16, 1995, and his subsequent termination from Amtrak, were racially motivated and in retaliation for complaints that he allegedly made to supervisors concerning discriminatory hiring practices. Defendant alleges, in contrast, that Plaintiff's employment was terminated based on its findings that he abused his rail pass privileges. Plaintiff also alleges that he was forced to contend with a hostile work environment while employed at Amtrak.


A. Summary Judgment

The standard for summary judgment is well-established. Summary judgment is appropriate 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). A material fact is genuinely disputed only if, based on that fact, a reasonable jury could find in favor of the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for summary judgment, all evidence must be viewed and all inferences must be drawn in a light most favorable to the nonmoving party. See City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 45 (2d Cir. 1988).

The party seeking summary judgment bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Nweke v. Prudential Ins. Co. of America, 25 F. Supp.2d 203, 214 (S.D.N.Y. 1998) ("When the defendant provides convincing evidence to explain its conduct, and the plaintiff's contention consists of purely conclusionary allegations of discrimination, the Court concludes that no material issue of fact exists, and it may grant Summary Judgment in favor of the defendant."). Upon the movant's satisfying that burden, the onus then shifts to the non-moving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 250. 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 (1986), but "must set forth specific facts showing that there is a genuine issue of fact for trial." First Nat'l Bank of Az. v. Cities Serv. Co., 391 U.S. 253, 288 (1968).

When deciding whether a summary judgment motion should be granted in an employment discrimination case, the Second Circuit has held that additional considerations must be taken into account. See Gallo v. Prudential Residential Serv., 22 F.3d 1219, 1224 (2d Cir. 1994). Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's documents, a trial court must be particularly cautious about granting summary judgment when the employer's intent is at issue. See Gallo, 22 F.3d at 1224; see also Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100, 103 (2d Cir. 1989). Affidavits and depositions must be scrutinized for circumstantial evidence which, if believed, would show discrimination. See Gallo, 22 F.3d at 1224. Nonetheless, when the defendant provides convincing evidence to explain its conduct and the plaintiff's contention consists of purely conclusory allegations of discrimination, the Court may conclude that no material issue of fact exists and it may grant summary judgment in favor of the defendant. See Stern v. Trustees of Columbia Univ., 131 F.3d 305, 312-14 (2d Cir. 1997); Meloff v. New York Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995). "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.'" Morris v. Amalgamated Lithographers of Am., Local One, 994 F. Supp. 161, 168 (S.D.N.Y. 1998) (quoting Stern, 131 F.3d at 312). It must be stressed that the trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue — resolution. See Gallo, 22 F.3d at 1224.

B. Statute of Limitations

Plaintiff's claims arise under 42 U.S.C. § 1981, which provides, in pertinent part, that "[a]ll persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens . . . ." 42 U.S.C. § 1981. Section 1981, originally passed as the Civil Rights Act of 1870, prohibited racial discrimination in the making and enforcement of private contracts, but it did not apply to conduct which occurred after the formation of the contract and which did not interfere with the right to enforce established contract obligations. See Patterson v. McLean Credit Union, 491 U.S. 164 (1989). Section 1981 was amended by the Civil Rights Act of 1991, adding subsection (b) to § 1981. Subsection (b) defines the phrase "make and enforce contracts" as "the making, performance, modification, and termination of contracts and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship."*fn1 Civil Rights Act of 1991, Pub.L. No. 102-166, § 101, 105 Stat. 1071 (codified at 42 U.S.C. § 1981(b)).

Section 1981 does not contain its own statute of limitations. To determine the statute of limitations in federal practice, one must first look at what the basis of subject matter jurisdiction is in the action. In a diversity of citizenship case, state law is looked to for the applicable statute of limitations. See Guaranty Trust Co. v. York, 326 U.S. 99 (1945). In a federal question case, however, where no federal statute supplies a time period for the particular claim, as such is the case here, the applicable period is "the state law of limitations governing an analogous cause of action." Board of Regents v. Tomanio, 446 U.S. 478, 483 (1980); see also Goodman v. Lukens Steel Co., 482 U.S. 656, 660 (1987) ("Because § 1981, like §§ 1982 and 1983, does not contain a statute of limitations, federal courts should select the most appropriate or analogous state statute of limitations.). The Supreme Court, following the rationale of Wilson v. Garcia, 471 U.S. 261 (1985), which analyzed which state statute of limitations should apply to Section 1983 actions, stated that Section 1981 has a much broader focus than simply contractual rights and was basically a personal injury action like Section 1983. See Goodman, 482 U.S. at 661. Therefore, the state statute of limitations period for personal injury actions should be borrowed in Section 1981 cases. See id. at 661-62. In New York, the applicable statute of limitations in a federal civil rights case, including claims brought under Section 1981, is three years. See Wilson v. Fairchild Republic Co., Inc., 143 F.3d 733, 739 n. 5 (2d Cir. 1998) ("Section 1981 employment discrimination claims brought in New York are subject to that state's three-year statute of limitations."); see also Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 (2d Cir. 1978); Tadros v. Coleman, 898 F.2d 10, 12 (2d Cir. 1990), cert. denied, 498 U.S. 869 (1990); Keyse v. California Texas Oil Corp., 590 F.2d 45, 47 (2d Cir. 1978) ("The applicable statute of limitations in a federal civil rights case brought in New York is the three years provided by N.Y.C.P.L.R. § 214(2) liability based on a statute."); Findlay v. Reynolds Metals Co., 82 F. Supp.2d 27, 36 (N.D.N.Y. 2000).

Plaintiff argues that this Court should apply the four-year statute of limitations prescribed by 28 U.S.C. § 1658. Section 1658 provides that "[e]xcept as otherwise provided by law, a civil action arising under an Act of Congress enacted after the date of the enactment of this section may not be commenced later than 4 years after the cause of action accrues." 28 U.S.C. § 1658. Section 1658 was enacted on December 1, 1990. See The Judicial Improvement Act of 1990, Pub.L. No. 101-650, Title III, § 313(a), 104 Stat. 5114. Plaintiff argues that, by virtue of the 1991 amendments to § 1981, his lawsuit ...

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