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Hardy v. Rochester Genesee Regional Transp. Authority

United States District Court, W.D. New York

September 12, 2012

Leroy HARDY, Plaintiff,

Page 179

Christina A. Agola, Esq., Richard N. Franco, Esq., Christina Agola PLLC, Brighton, NY, for Plaintiff.

Daniel J. Moore, Esq., Roy R. Galewski, Esq., Harris Beach LLP, Pittsford, NY, for Defendant.


CHARLES J. SIRAGUSA, District Judge.


This is an action alleging retaliation in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), as amended, 42 U.S.C. § 2000e et seq., the New York Human Rights Law (" NYHRL" ), Executive Law § 290 et seq. , and 42 U.S.C. § 1981 (" Section 1981" ). Now before the Court is Defendant's Motion for Summary Judgment

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(Docket No. [# 15] ). The application is granted.


Unless otherwise noted, the following are the facts of this case, viewed in the light most-favorable to Plaintiff. Defendant is a public transportation authority in Rochester, New York. Plaintiff worked for Defendant as a bus driver for twelve years, between August 1997 and December 29, 2009. Specifically, Plaintiff worked for Lift Line, Inc., a subsidiary of Defendant, which provided curb-to-curb transportation for disabled persons who were unable to use Defendant's conventional bus system. See, Pl. Dep. at p. 46. Plaintiff had an extensive disciplinary history prior to any of the events at issue in this case. Specifically, prior to 2007, Plaintiff was " frequently" disciplined for committing work-rule violations. See, Pl. Resp. to Def. Stmt. of Facts ¶ 18 (Admitting that he was " frequently disciplined for various violations of Lift Line rules, policies and established practices." ). Plaintiff's misconduct included being late for pickups, leaving a passenger unattended on his running bus, while he took a break, falsifying a damage report, failing to perform safety checks, and using his bus to transport his grandchildren.

Plaintiff generally admits engaging in the conduct that led to such discipline, though he also maintains that the instances of discipline were unfair to him for a variety of reasons. For example, on one occasion in 2002, when Plaintiff was warned for failing to lower the bus ramp for a handicapped passenger, he maintains that the ramp was broken, even though the disciplinary report specifically indicated that the ramp and had been tested and was functioning properly. On another occasion in 2004, when Plaintiff was disciplined for falsifying the time that he picked up a passenger in order to hide the fact that he was late, he indicates that the discipline was unfair because it was " customary" for drivers to write down the wrong time. Pl. Dep. at p. 112. With regard to another disciplinary incident, involving his failure to keep his radio turned on, Plaintiff maintains that several other bus drivers also turned their radios off but were not disciplined. This assertion, though, is based only on his belief, from listening to the bus company's radio while driving, that those drivers did not respond to certain calls. See, Pl. Dep. at pp. 96-101. Plaintiff maintains that generally, he was singled out for discipline because he is Black and because he was a union representative.

In any event, in April 2007, following another disciplinary infraction, Defendant issued Plaintiff a " final warning" indicating that any future violations would result in the termination of his employment. Plaintiff disputes whether the final warning was fair, but he cannot claim that it was retaliatory under the statutes at issue here, since, at the time the warning was issued, he had not engaged in any protected activity.

Subsequently, and for approximately the next two years, Plaintiff avoided any disciplinary infractions. During that period, in October 2007, two other bus drivers, Michael Talton, who is African American, and Enio Rivera, who is Hispanic, filed a discrimination complaint against Defendant in this Court. In May 2009, Plaintiff provided an affidavit in support of Talton's and Rivera's lawsuit, alleging that he had witnessed various acts of harassment and retaliation against them. Also during this period, on July 13, 2009, Plaintiff testified at a deposition in Talton's and Rivera's lawsuit, after being subpoenaed by Defendant.

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On August 16, 2009, Plaintiff was caught speeding while on duty driving a Lift Line bus. Video evidence established that Plaintiff drove 71 mph in a 55 mph zone, and that he drove 66 mph in a construction zone having a 45 mph speed limit. Plaintiff does not dispute that he was guilty of speeding. Pl. Dep. at pp. 142-144. However, he contends that other drivers " routinely" drove above the speed limit. Id. As a result of this speeding incident, which occurred after Plaintiff's final warning, Defendant decided to terminate Plaintiff's employment. However, on November 12, 2009, Plaintiff's labor union convinced Defendant to consider a less severe punishment. On November 17, Defendant and Plaintiff entered a " Last Chance Agreement," under which Plaintiff would keep his job, provided that he complied with " all Lift Line rules and regulations" and " all traffic and motor vehicle operating laws." Pl. Resp. to Def. Stmt. of Facts ¶ 35. Plaintiff agreed that if he failed to do so, Defendant could immediately terminate his employment, and that if such termination occurred within one year of the Last Chance Agreement, he could not challenge the severity of his punishment under the Collective Bargaining Agreement (CBA). Id. at ¶¶ 35-36.

Approximately two weeks later, a private citizen complained to Defendant that Plaintiff had made an illegal left-hand turn from a right-turn-only lane, and had almost collided with his car. Defendant investigated, and the evidence, including videotape from the bus's cameras, established that Plaintiff had made a left turn from a right-turn only lane, cut off the car in the outside left-turn lane, and then passed that vehicle on the right. Plaintiff admitted that he made the illegal turn, but nevertheless maintains that he was operating the bus safely.

On December 10, 2009, Defendant charged Plaintiff with unsatisfactory job performance, based on the illegal turn.

On December 15, 2009, Plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC). Plaintiff alleged that he was being singled-out for retaliation, for providing testimony in the action ...

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