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January 8, 2003


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.


Plaintiff Terry Spadola ("Spadola") brought this action under Title VII of the Civil Rights Act or 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), against defendants New York City Transit Authority and Manhattan and Bronx Surface Transit Operating Authority (collectively the "Authority"). Spadola alleges that the Authority engaged in unlawful retaliation, through successive disciplinary proceedings that ultimately led to his dismissal, in response to his objecting to a comment, addressed to him by an Authority supervisor, that he regarded as sexual harassment. The Authority moved for summary judgment dismissing the action. By order dated December 27, 2002, the Court granted the motion and indicated that its reasoning would be set forth in a separate Decision to be made available to the parties.


Spadola was employed by the Authority as a Line Supervisor at the Authority's bus maintenance depots from December 1980 until his termination in July of 1999. His duties included scheduling work orders, distributing assignments and checking work performed by employees he supervised.

1. The July 27, 1997 Incident

The incident Spadola alleges ultimately prompted his dismissal by the Authority, and that in his view served as the basis for subsequent disciplinary actions, occurred on July 27, 1997 (the "July 1997 Incident") at the Authority's 146th Street Depot where Spadola was then assigned. On that day, Authority Maintenance Superintendent Tina Washington ("Washington") was instructing another employee, Maintenance Superintendent William Bedford ("Bedford"), on the use of a new computer system known as MIDAS. In the course of the training session, Washington noted a possible duplication of work orders, authorized by Spadola, that had been entered into the computer. Washington was not Spadola's immediate supervisor and the two had not previously met. Spadola was called to the office, a small space measuring approximately six feet by nine feet, to explain the error. Bedford, who was Spadola's supervisor, and another contract employee were present when the encounter occurred.

By Spadola's account, Washington repeatedly questioned him about the duplicate work orders and he responded that he "had no idea what she was talking about." (Spadola Deposition ("Spadola Dep."), attached as Exhibit A to the Declaration of Steve S. Efron dated March 22, 2002 ("Efron Decl."), at 77.) When Washington's questioning became more persistent, Spadola replied: "I don't know, you're the instructor, I don't know, what are you asking me for, you figure it out." (Id.) Following more heated exchange, Spadola finally turned to leave, telling Washington: "Look, I don't have time for this." (Id. at 77-78.) At this point, according to Spadola

I was going outside the door and she called me, "Honey, sweetie, dear, come back." So I went and I told her, "If you call me that again I will write you up for sexual harassment." She said, "If you don't take your finger out of my face I'm going to take you out of service.
(Id. at 78.)

Spadola contends that after the incident he spoke to Bedford, and asked whether he should prepare a written report, and that Bedford advised him to drop the matter. (Affidavit of Terry Spadola dated October 15, 2002 ("Spadola Aff.") ¶ 4.)

Washington submitted her version of the episode in a memorandum to the 146th Street Depot's Assistant General Manager, John Bolds ("Bolds"), in which she asserted that Spadola's conduct was irrational, unprofessional and threatening. (Efron Decl. Ex. E.) Bedford prepared his own report in which he confirmed that Spadola was agitated and pointed his finger in Washington's face. (Id.)

In his deposition in connection with this action, Spadola testified that following his encounter with Washington, he left the office feeling that "everything was fine" and had no intention to charge Washington with sexual harassment. (Spadola Dep. at 88-89.) Upon learning of the reports filed by Washington and Bedford, however, he reported the incident and his sexual harassment allegation to his union representative. (Id. at 88-89.) The union declined to bring the accusation to the Authority's attention. (Id. at 98-99.)

As a result of the July 1997 Incident, Bolds suspended Spadola from service on July 31, 1997 and charged him with several disciplinary infractions, specifically that:

1. when questioned by management regarding a computer error attributed to you, you responded in a loud and abusive manner;
2. in a threatening manner, you pointed your finger in a manager's face while continuing to be loud and abusive;
3. you threatened to bring false charges of sexual harassment against a member of management if you were taken out of service by that manager.
(Efron Decl. Ex. F.)

The charges were sustained following an administrative hearing conducted by Bolds during Step I and subsequently in Step II of the Authority's internal disciplinary grievance procedure. As a consequence, Bolds's recommendation that Spadola be discharged was deemed appropriate under the Authority's internal grievance procedures. Pursuant to the Authority's collective bargaining agreement, Spadola filed a grievance in an arbitration proceeding to appeal his dismissal.

In an Opinion and Award issued on October 17, 1997, arbitrator George Nicolau ("Nicolau") concluded that Spadola's behavior "was clearly inappropriate," but that the penalty of discharge was disproportionate under the circumstances. (Efron Decl. Ex. H, at 6.) He found that Spadola's statement regarding his filing of sexual harassment charges against Washington, whether ultimately vindicated or not, was "legally privileged" and thus could not serve as proper grounds for disciplinary action. (Id. at 7.) However, Nicolau ruled that Spadola's behavior otherwise was "generally uncooperative" and "not reasonably to be expected of one supervisor to another and was therefore conduct unbecoming his status." (Id.) Nicolau, noting evidence of "other episodes" of similar conduct in Spadola's employment record toted by the Authority, ruled that a three-week suspension was more appropriate. (Id.)

2. The Overtime Charges

In fact, about two weeks prior to the July 1997 Incident, the Authority had received another complaint of similar behavior by Spadola. The report was communicated in a memorandum dated July 15, 1997 from the supervisor of the City University ("CUNY") unit that administered the MIDAS training workshops. (Declaration of Michael A. Lendino dated March 21, 2002 ("Lendino Decl.") Ex. A.) The CUNY trainer alleged that during a training session Spadola had attended from July 7 to July 9, 1997, Spadola had been excessively disruptive, uncooperative and unprofessional, and that on the second night of the workshop he left during a scheduled lunch break and did not return.

The report was referred for investigation by the Operations Analysis and Review ("OAR") division of the Authority's Office of Labor Relations ("OLR"). Because the CUNY trainer's report came to the Authority's attention less than two weeks before the July 27 Incident as a result of which Spadola had been suspended on July 31, the investigation of the training workshop episode coincided with part of the time during which Spadola was already under suspension. The OAR, finding conflicting accounts from participants and witnesses, was unable to substantiate the allegation that Spadola had acted inappropriately during the training session. However, in the course of investigating related allegations that Spadola had fraudulently claimed overtime for attending MIDAS sessions on July 10 and 11, 1997, OAR examined Spadola's time sheets and determined that he had intentionally filed false claims for overtime payments. The OAR report was issued on October 23, 1997. Spadola, who had just been reinstated to his position as a result of Nicolau's arbitration ruling on October 17, 1997, was again immediately suspended and charged with making fraudulent time sheet entries.

The false overtime charge was upheld during the Authority's Step I and Step II internal procedures and finalized on November 24, 1997. Prior to the conclusion of this proceeding, on or about November 14, 1997, Spadola filed a charge with the Equal Employment Opportunity Commission ("EEOC") and the New York State Division of Human Rights. In it, Spadola alleged that the disciplinary actions brought against him were motivated by racial discrimination and retaliation for his having complained of sexual harassment by a black employee.*fn1

Spadola filed a grievance with regard to the improper overtime charges. The arbitration was conducted by Nicolau. In an Opinion and Award issued on March 3, Nicolau set aside the charges and ordered Spadola reinstated. Nicolau was not persuaded that Spadola could have intended to defraud the Authority by his method of making overtime entries. (Efron Decl. Ex. K.) He commented that the OAR investigation into the ...

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