Cross v. New York City Transit Authority, Docket No. 04-2912-cv.

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtRaggi
Citation417 F.3d 241
Decision Date02 August 2005
Docket NumberDocket No. 04-2912-cv.
PartiesKeith CROSS and Alfred Francis, Plaintiffs-Appellees, v. NEW YORK CITY TRANSIT AUTHORITY and Gregory Warren, Defendants-Appellants.
417 F.3d 241
Keith CROSS and Alfred Francis, Plaintiffs-Appellees,
v.
NEW YORK CITY TRANSIT AUTHORITY and Gregory Warren, Defendants-Appellants.
Docket No. 04-2912-cv.
United States Court of Appeals, Second Circuit.
Argued: March 22, 2005.
Decided: August 2, 2005.

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COPYRIGHT MATERIAL OMITTED

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Steve S. Efron, New York, New York, for Defendants-Appellants.

Roosevelt Seymour, Brooklyn, New York, for Plaintiffs-Appellees.

Before: SOTOMAYOR, RAGGI, and HALL, Circuit Judges.

Page 244

RAGGI, Circuit Judge.


Defendants-appellants New York City Transit Authority ("Transit Authority") and a Transit Authority Superintendent, Gregory Warren, appeal from a final judgment of the United States District Court for the Eastern District of New York (Charles P. Sifton, Judge), entered on April 22, 2004, awarding plaintiffs compensatory and liquidated damages for violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and the New York Human Rights Law, N.Y. Exec. Law § 296 Defendants challenge (1) the verdict of liability as against the weight of the evidence; (2) the liquidated damages award because (a) plaintiffs failed to carry their burden on the element of willfulness, (b) the Transit Authority, as a governmental entity, is exempt from liquidated damages, and (c) Gregory Warren's liability was premised solely on the New York Human Rights Law, which does not provide for liquidated damages; and (3) the $50,000 compensatory award to each plaintiff for emotional distress because it "deviates materially" from amounts generally awarded in similar cases under New York law. N.Y. C.P.L.R. § 5501(c).

The record as a whole indicates that the jury awarded liquidated damages only against the Transit Authority and that the district court intended its judgment to reflect that award. To the extent the judgment is at all ambiguous in appearing to award damages against all defendants, the error is easily corrected. We hereby vacate the award of liquidated damages as against Warren. We affirm the district court's judgment in all other respects, finding no merit in defendants' remaining challenges.

I. Background

At issue in this case are the circumstances in 1998-99 under which plaintiffs Keith Cross, then age 59, and Alfred Francis, then age 62 — the two most senior Electronic Equipment Maintainer Helpers ("Helpers") at the New York City Transit Authority — received provisional promotions to positions as Electronic Equipment Maintainers ("Maintainers") only to be demoted within a few months back to Helpers.1 Plaintiffs, both African-Americans, contended at trial that their demotions were based on race and age. Defendants countered with a nondiscriminatory reason: plaintiffs' inability to perform satisfactorily as Maintainers. The jury found that plaintiffs' demotions were discriminatory, but it found the cause to be the plaintiffs' age, not their race. Because defendants challenge the sufficiency of the jury finding of age discrimination, as well as the damages awarded, we are obliged to review the trial evidence in some detail, viewing all facts in the light most favorable to the plaintiffs and drawing all reasonable inferences in their favor. See Fairbrother v. Morrison, 412 F.3d 39, 48 (2d Cir.2005); McCarthy v. New York City Technical Coll. of City Univ. of New York, 202 F.3d 161, 165 (2d Cir.2000).

A. The Plaintiffs' Promotions to Positions as Provisional Maintainers

1. The Defendants' Initial Resistance to Promoting Helpers to Fill Maintainer Vacancies or to Using Seniority as a Basis for Promotion

In the summer of 1998, a Transit Authority reorganization resulted in a redistribution of work assignments, creating a need to hire a number of new Maintainers

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at the East New York electronics shop. In September 1998, after the last qualified Maintainer candidate on the civil service eligibility list was hired, General Superintendent Gregory Warren notified the Transport Workers Union, Local 100 ("the union"), that he intended to look outside the Transit Authority to fill the remaining Maintainer vacancies. Union representatives objected, insisting that the Transit Authority afford Helpers the opportunity to advance their careers by promoting them to the open Maintainer positions. As a result of negotiations between Transit Authority management and the union, Warren agreed to send notices to all Helpers asking them to indicate in writing whether they were interested in provisional appointments as Maintainers. Nine Helpers, including plaintiffs, responded by expressing an interest in promotion: Alfred Francis, age 62; Keith Cross, 59; Marlon Boothe, 36; Mario Galvet, 39; John Polydore, 46; Abdull Rafeek, 38; Carvel Freirson, 43; Christopher St. John, 36; and Gary Credle, early 40s.

Warren advised the union that he would decide which of the interested Helpers best merited promotions to provisional Maintainers. Union representatives objected, insisting that seniority be the criterion for the promotions. At the time, Cross and Francis were not only the oldest but also the two most senior Helpers in the communications maintenance department. Once again compelled to accede to the union's demands, Warren promoted Cross and Francis in October 1998 to positions as provisional Maintainers in the East New York electronics shop.

2. The Plaintiffs' Inferior Training

Cross and Francis were apparently not trained together with other new Maintainer hires. Instead, plaintiffs continued to be assigned the same menial work that they had performed as Helpers. More important, Cross and Francis were not given technical manuals and training materials customarily distributed to new Maintainers, such as the Standard Operating Procedure and Base Station Maintenance Manuals and the operating manuals for test equipment used by Maintainers in the department. Plaintiffs had observed such materials being distributed to Maintainers Misa, Glazman, and Falsbaum, younger men recently appointed from the civil service list.

Eladio Diaz, a union official who had previously worked as a Maintainer under Warren, testified about the importance of training manuals in orienting a new Maintainer to his duties:

When I was first hired I was given an SOP, which is a standard operating procedure, which is like a manual to us when we first start. It explains everything that is needed to accomplish any of the jobs including adjusting and locations of the equipment. It is broken up into sections that show you each specific equipment and how to adjust it. And other equipment and other manuals, such as manual for testing equipment and manuals on the base stations and other such equipment.

Trial Tr. at 321.

Defendants' witness, Foreman Vladimir Katkofsky, concurred in the importance of the Standard Operating Procedure Manual to new Maintainers:

Usually, in our shop, every Maintainer would get SOP when he's hired. It is the standard. . . . [E]verybody is supposed to have it. It tells you how to address trouble calls, how to address field work. So Helpers wouldn't get them, but all Maintainers they would be given SOP's . . . [B]ecause . . . you see, the base stations at certain locations from time-to-time will have some addition.

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They will be in a small part, different shape from the other one. For example, maybe an antenna, a route change. Maybe one of the control boards for some reason changed. So all of the changes in the field equipment, the field base station and so on will be in this SOP's. So some guys have very good memory. They remember everything that went down five or six years ago at certain base stations, but not everybody has good memories. So it would make good policy to go to the SOP see if it was somehow changed from what we used to have.

Id. at 732. Katkofsky also testified that, with regard to the Base Station Maintenance Manual, "[i]n the beginning when you are not familiar with the base station. . . it is very important." Id. at 733.

Francis made a number of specific requests to various supervisors for the training manuals but was told that none were available. On one occasion when Cross complained to Superintendent Donald George about not being provided with the training materials he had seen distributed to other Maintainers, George responded: "After all these years you guys been here, all of a sudden you want to be Maintainers." Id. at 244. On yet another occasion when Cross requested training materials, George replied: "Look Cross, I have my boss, I have to follow orders." Id.

Plaintiffs testified that when Foreman Katkofsky trained younger Maintainers Misa, Konstantin, and Glazman on the use of the R2670 analyzer, one of the primary pieces of electronic equipment used by Maintainers in the East New York shop, he provided them with colored illustrations and schematics to assist them in learning the operations of the equipment. Cross and Francis never received these materials. They were given only a few pages excerpted from the analyzer's four-hundred-page operating manual and perfunctory instructions about the machine's operation on the workplace floor. When, in December 1998, Cross and Francis were notified that they were to be tested on the R2670 analyzer, the men protested that they had not received adequate training to perform satisfactorily on the machine. Indeed, both men failed the analyzer test, prompting a recommendation that they be demoted to their former positions as Helpers.

The union protested the recommendation to Warren, pointing out that the testing equipment had never been made available to Cross and Francis for field use. Further, both men had been denied the use of notes and other procedures customarily used in radio equipment testing. The union complained that Cross and Francis were being discriminated against because of their race.

B. The Plaintiffs' Demotion

In early 1999, Warren notified Cross and Francis that, to continue as Maintainers, they would...

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    ...Inc., 530 U.S. 133, 147 (2000) (internal quotation marks, alteration, and ellipsis omitted); see also Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005) (noting that plaintiff must prove discrimination "'was the real reason' for any adverse employment action" (quoting Schnabel ......
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    • December 17, 2014
    ...of law on this issue, although our review is “bound by the same stern standards” as the district court's. Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248 (2d Cir.2005). We therefore view all evidence and draw all inferences in favor of the party opposing judgment as a matter of law, Fabri ......
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194 cases
  • In re Methyl Tertiary Butyl Ether (“MTBE”) Prods. Liab. Litig., Docket Nos. 10–4135–cv, 10–4329–cv.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • July 26, 2013
    ...See Leibovitz v. New York City Transit Auth., 252 F.3d 179, 184 (2d Cir.2001) (new trial); Cross v. New York City Transit Auth., 417 F.3d 241, 258 (2d Cir.2005) (remittitur). A district court “ordinarily should not grant a new trial unless it is convinced that the jury has reached a serious......
  • Brady v. Wal-Mart Stores, Inc., No. CV 03-3843(JO).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • September 29, 2006
    ...of the non-moving party, and ... may not make credibility determinations or weigh the evidence." Cross v. New York City Transit Auth., 417 F.3d 241, 247 (2d Cir.2005) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)) (internal quo......
  • Harewood v. N.Y.C. Dep't of Educ., 18 Civ. 5487 (KPF)
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • February 22, 2021
    ...Inc., 530 U.S. 133, 147 (2000) (internal quotation marks, alteration, and ellipsis omitted); see also Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248 (2d Cir. 2005) (noting that plaintiff must prove discrimination "'was the real reason' for any adverse employment action" (quoting Schnabel ......
  • Turley v. Isg Lackawanna, Inc., Docket No. 13–561.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • December 17, 2014
    ...of law on this issue, although our review is “bound by the same stern standards” as the district court's. Cross v. N.Y.C. Transit Auth., 417 F.3d 241, 248 (2d Cir.2005). We therefore view all evidence and draw all inferences in favor of the party opposing judgment as a matter of law, Fabri ......
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