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Gary Sass v. Mta Bus Company

October 1, 2012


The opinion of the court was delivered by: Margo K. Brodie, United States District Judge:


Plaintiff Gary Sass brings the above-captioned retaliation action against his former employer Metropolitan Transportation Authority Bus Company ("MTA Bus") under Title VII of the Civil Rights Act of 1964 ("Title VII"), New York Executive Law § 296, and New York City Human Rights Law, Administrative Code § 8-107. Plaintiff was employed as a bus maintenance supervisor at MTA Bus. According to Plaintiff, he was terminated in retaliation for telling MTA Bus investigators in 2009 that he had reported to his supervisor in 2008 a bus roster with Nazi symbols and his supervisor failed to take any action. Defendant has moved for summary judgment. The Court heard oral argument on Defendant's motion on July 27, 2012. For the reasons set forth below, Defendant's motion for summary judgment is denied.


In January 2007, Plaintiff was hired by MTA Bus as a bus mechanic. (Def. 56.1 ¶ 1.) Several months later, Plaintiff was promoted to the position of bus maintenance supervisor at the College Point depot. (Id. at ¶ 2.) Plaintiff, who is Jewish, alleges that in early March 2008, he discovered a MTA Bus roster with two Nazi symbols printed on the roster and he shared the document with fellow supervisor Ira Lepzelter; Plaintiff then wrote an irregularity report and gave the report and a copy of the roster to his immediate supervisor Charles Miller, but Miller failed to take any action related to the report. (Pl. 56.1 ¶¶ 24--26.)

On or about October 23, 2009, Plaintiff gave Ganesh Totaram, also a maintenance supervisor, the roster with the Nazi symbols. (Def. 56.1 ¶ 4.) Totaram told Plaintiff that he would submit the roster to management. (Id. at ¶ 5.) According to MTA Bus, both Totaram and Plaintiff altered the roster sheet, changing the header to delete Plaintiff's handwriting from the document. (Id. at ¶ 6; Efron Decl Ex. B (Totaram Dep. 15:14--16:17).)*fn1 According to Plaintiff, only Totaram altered the document. (Pl. 56.1 ¶¶ 5, 15.) Both Parties agree that after the document was altered, Totaram placed the altered roster in an envelope and submitted it to Robert Bruno, General Superintendent for Maintenance at the College Point depot. (Def. 56.1 ¶ 7.) Bruno brought the document to the attention of Robert Picarelli, MTA Bus's Chief Officer of Operation Improvement and Internal Studies. (Id. at ¶ 8.)

On October 29, 2009, Picarelli went to College Point depot to investigate the roster. (Id. at ¶ 9.) During the investigation, Picarelli interviewed Totaram. (Id. at ¶ 10.) After the Totaram interview, Plaintiff was interviewed and initially stated that the roster had been found during his preceding shift. (Id. at ¶ 11.) Plaintiff was shown the altered roster and stated that the roster was the one that he found. (Id. at ¶ 12.) A short time later, Plaintiff overheard Picarelli and Bruno commenting that the bus numbers on the roster did not correspond with the buses actually assigned at that time to the College Point depot. (Id. at ¶ 13.) Plaintiff then informed Picarelli that the version of the roster in Picarelli's possession was not the original and gave him the original version with the word "Rims" in Plaintiff's handwriting. (Id. at ¶ 14.) Plaintiff also told Picarelli that he had previously given the document to Miller in 2008, who failed to take action. (Pl. 56.1 ¶¶ 44--46; Def's Reply Br. 6.)

Picarelli prepared a report and recommended that disciplinary action be taken against both Plaintiff and Totaram, but he did not recommend the type of action to be taken. (Def. 56.1 ¶ 16; Decl. Efron Ex. C (Picarelli Dep. 44:8--20).) MTA Bus's Senior Director for Labor Relations, David Franceschini, drafted disciplinary charges against Plaintiff and Totaram. (Def. 56.1 ¶ 17.) Plaintiff and Totaram were charged with altering evidence, falsification of a company document, making false statements to management, gross misconduct, and conduct unbecoming of an MTA Bus employee. (Id. at ¶ 18.) On or about November 20, 2009, Arturo Hidalgo, an assistant general manager, conducted a proceeding on the charges.*fn2 (Decl. Efron Ex. A (Sass Dep. 130:1--25 ).) Plaintiff was represented by a union representative, Robert Elznic, at the proceeding. (Def. 56.1 ¶¶ 19--20.) At the conclusion of the proceeding, Plaintiff was fired and Totaram was given a 30-day suspension and a final warning. (Id. at ¶ 21.)


a.Standard of Review

Summary judgment is proper only when, construing the evidence in the light most favorable to the non-movant, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Doninger v. Niehoff, 642 F.3d 334, 344 (2d Cir. 2011). The role of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial."

Cioffi v. Averill Park Cent. Sch. Dist. Bd. of Educ., 444 F.3d 158, 162 (2d Cir. 2006) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). A genuine issue of fact exists when there is sufficient "evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252. "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson, 477 U.S. at 252 (emphasis added) (citations omitted). "The trial court's function in deciding such a motion is not to weigh the evidence or resolve issues of fact, but to decide instead whether, after resolving all ambiguities and drawing all inferences in favor of the non-moving party, a rational juror could find in favor of that party." Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir. 2000). The Second Circuit has made clear that while summary judgment is available in discrimination cases where there are no genuine issues of material fact, "an extra measure of caution is merited" when considering summary judgment in discrimination cases because "direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions." Schiano v. Quality Payroll Sys., 445 F.3d 597, 603 (2d Cir. 2006).


Claims of retaliation for engaging in protected conduct under Title VII are examined under the McDonnell Douglas burden shifting test. McDonnell Douglas Corp. v. Green, 411 U.S. 742, 802 (1973); see Fincher v. Depository Trust and Clearing Corp., 604 F.3d 712, 720 (2d Cir. 2010).*fn3 Under the test, "[f]irst, the plaintiff must establish a prima facie case of retaliation. If the plaintiff succeeds, then a presumption of retaliation arises and the employer must articulate a legitimate, non-retaliatory reason for the action that the plaintiff alleges was retaliatory. If the employer succeeds at the second stage, then the presumption of retaliation dissipates and the plaintiff must show that retaliation was a substantial reason for the complained-of action." Fincher, 604 F.3d at 720 (citations omitted); see also Tepperwien v. ...

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