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Vargas v. Manhattan and Bronx Surface Transit

May 3, 2010


The opinion of the court was delivered by: Alvin K. Hellerstein, U.S.D.J.


Plaintiff Hector Vargas, proceeding pro se, alleges that Defendants Manhattan and Bronx Surface Transportation Authority ("MABSTOA") and the New York City Transit Authority discriminated against him because of his age and disability, and deprived him of certain constitutional rights during the course of disciplinary proceedings. Defendants move for summary judgment. For the reasons stated below, Defendants' motion is granted.


The New York City Transit Authority is a public benefit corporation created by the State of New York to operate trains and buses in New York City. N.Y. Pub. Auth. Law § 1201. MABSTOA, a statutory subsidiary of the New York City Transit Authority, is a legally distinct public benefit corporation created to operate bus lines in Manhattan and the Bronx. Id. § 1203-a(3)(b). Employees of MABSTOA are not employees of the New York City Transit Authority. Id. The Transit Workers Union, the New York City Transit Authority, and MABSTOA are governed by the same Collective Bargaining Agreement.

Hector Vargas, age 61 when he filed this action, was hired by MABSTOA in March 1997 as a bus driver. In 2003, Vargas was reassigned to MABSTOA's Department of Security as a Transit Property Protection Agent ("Protection Agent"). Vargas currently holds this position. A Protection Agent is required to monitor access to and from MABSTOA and New York City Transit Authority properties; ensure that gates to the properties are secured; register employees, visitors, and vehicles entering the properties; report security and safety threats; and respond to certain directives. Protection Agents are required to maintain a logbook at each post to record the various times that they enter and leave that post. The logbook must remain at the post at all times. Protection Agents are supervised by Transit Property Protection Supervisors ("Supervisors").

Vargas claims that, when the underlying events took place, he was the oldest Protection Agent at the Manhattanville Bus Depot, the location he was assigned to work. On July 10, 2007, Vargas was working a shift from midnight to 8:00 a.m. at a guard booth known as "Post 76B." The logbook for Post 76B shows that Vargas left his post at 6:04 a.m. for a "comfort relief," the term used to refer to a bathroom break.*fn1 Under standard procedure, while Vargas was gone, the Protection Agent assigned to Post 76C left his guard booth and covered Vargas's post.

While Vargas was on his comfort relief, Supervisor Clare Fowler arrived at the Manhattanville Bus Depot. Supervisor Fowler signed into the 76B logbook at 6:33 a.m. and learned that Vargas was on a comfort relief. Supervisor Fowler proceeded inside the bus depot and found Vargas sitting on a couch in "the swing room," a break area with couches and a television intended to be used by bus operators while on break. The television was on and it appeared to Fowler that Vargas was watching it. Vargas admits that he was sitting on the couch, but contends that he was speaking with a union representative about union matters, not watching television.

Supervisor Fowler instructed Vargas to return to his post. Vargas claims that Fowler also took a picture of him sitting on the couch, though Fowler disputes this. Fowler left the swing room and returned a few minutes later to find that Vargas remained on the couch. Fowler then proceeded to Vargas's post and waited for him to return. Fowler notified her supervisor, Xavier Ruiz, of Vargas's behavior. Ruiz instructed Fowler to hold Vargas "out of service"*fn2 and to have him write a statement. The logbook shows that Vargas returned to his post at 6:53 a.m., forty-nine minutes after signing out for his comfort relief. Vargas contends that the length of his comfort relief was appropriate "due to the circumstances of his needs."

On returning to his post, Fowler instructed Vargas to hand over his badge and pass. Vargas refused, and Fowler advised Vargas that she would add a charge of insubordination if he failed to hand over the requested documents. Fowler again relayed Vargas's behavior to Ruiz, and Ruiz instructed Fowler to tell Vargas not to leave his post until Ruiz arrived. Fowler relayed Ruiz's message and, in response, Vargas removed the logbook from his post and left the area.

Xavier Ruiz arrived at the Manhattanville Bus Depot at approximately 8:15 a.m. When Vargas returned to Post 76B, Ruiz requested the logbook and Vargas's badge and pass. Vargas handed over the logbook, but not his badge or pass. Vargas claims that he did not submit his badge or pass because he did not have them in his possession at the time. Ruiz instructed Vargas to leave the property and advised him of the time, date, and location of a disciplinary hearing for the events of that morning.

Pursuant to standard operating procedure, the Deputy Chief of the Department of Security reviewed the reports prepared by Fowler and Ruiz, and requested the Office of Labor Relations to initiate a disciplinary proceeding against Vargas. Vargas was charged in the disciplinary action with being away from his assigned post while watching television, failure to comply with direct orders, gross insubordination, being discourteous to supervisors, failure to perform duties, removing the logbook from his post without permission, improper use of a comfort relief, dereliction of duty, and conduct unbecoming a Transit employee.

Under the Collective Bargaining Agreement, the New York City Transit Authority and MABSTOA follow a progressive disciplinary policy for rules violations. Penalties run from a warning or reprimand for a minor violation, to a suspension or dismissal for a more serious infraction. Disciplinary disputes are subject to a multi-step grievance procedure. The first step is the preparation of charges against the employee. The employee may challenge those charges at a Step I hearing, which is held before a Step I hearing officer. The employee is entitled to representation by a union representative and may testify on his own behalf. The employee may accept the Step I hearing officer's recommended penalty or request a Step II hearing, the next phase of the disciplinary process. The Step II hearing officer has the discretion to sustain or dismiss the charges, and to sustain, dismiss, or modify the penalty. At the Step II hearing, the New York City Transit Authority is usually represented by the Director of Labor Relations, or a designee, and the employee is usually represented by a union representative. The final stage is binding arbitration before an impartial arbitrator. For serious offenses, like those Vargas is charged with, the penalty can be imposed before the hearing process has been completed. The parties may settle a disciplinary grievance at any time during the disciplinary process. When the parties settle, they typically enter a written Stipulation and Agreement. The Stipulation and Agreement memorializes the terms of the agreement, the penalty, and the disciplinary actions covered by the settlement.

Vargas's Step I hearing was held on July 11, 2007 before Step I hearing officer Ralph Misiti. Vargas was accompanied by a union representative, Bill Seff. Misiti real aloud the reports prepared by Fowler and Ruiz, and the Disciplinary Action Notification, which summarized the charges against Vargas, and included the recommended penalty of dismissal. Vargas contends that, before the hearing began, Misiti said: "Mr. Vargas, before we begin, you are dismissed." Defendants deny that this statement was made. At the hearing, Vargas denied that he was ever asked for his badge or pass, and stated that, due to his diabetes, he needed to take an extended comfort relief to rest before returning to his post, and that Supervisor Fowler treated him disrespectfully. Misiti sustained the charges and the recommended penalties. Vargas appealed that decision. The Step II hearing was held on July 16, 2007, and Vargas was again accompanied by Bill Seff, the union representative. The Step II hearing officer sustained the charges and the penalty of dismissal. Vargas appealed that decision.

Before any action was taken on his appeal to the neutral arbitrator, Vargas and MABSTOA reached an agreement and settled the dispute. The parties agreed that the penalty would be reduced from a dismissal to a five-day suspension. The agreement was memorialized in a one-page Stipulation and Agreement, dated July 16, 2007, that releases the "Transit Authority from any and all claims, whether at law[,] in equity[,] or arising by virtue of contract which they may have or which they have had heretofore in connection with [the] underlying dispute." The ...

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