NELSON v. NEW YORK CITY TRANSIT AUTHORITY (2020)

Order, Supreme Court, New York County (Kathryn Freed, J.), entered March 22, 2019, which, to the extent appealed from, denied in part defendants' motion for partial summary judgment, unanimously affirmed, without costs.

Defendants New York City Transit Authority (N.Y.CTA) and Metropolitan Transit Authority Bus Company (MTA) failed to establish prima facie entitlement to partial summary judgment dismissing plaintiff's remaining claims of discrimination and retaliation.  The record, including the findings of the neutral arbitrator, does not conclusively resolve factual issues regarding MTA's motives in levying various disciplinary charges against plaintiff between 2012 and 2016 (compare Novak v. St. Luke's–Roosevelt Hosp. Ctr., Inc., 136 A.D.3d 435, 436, 24 N.Y.S.3d 616 [1st Dept. 2016];  Collins v. New York City Tr. Auth., 305 F.3d 113, 119 [2d Cir.2002] [decision of a neutral arbitrator upholding charges of misconduct was “highly probative of the absence of discriminatory intent”]).  Unlike Collins and Novak, plaintiff here challenged a number of disciplinary charges, including two dismissals, and the arbitrator twice found that defendants' penalties were disproportionate to the charged misconduct.

Further, plaintiff independently lodged formal complaints that her superiors at MTA made discriminatory, disparaging comments about her race and gender before any disciplinary actions were taken against her.  Viewed in context, the alleged pervasive, racist, and sexist comments and conduct preclude summary dismissal of this case as “insubstantial” (Hernandez v. Kaisman, 103 A.D.3d 106, 115, 957 N.Y.S.2d 53 [1st Dept. 2012]).