Thomas Romney v New York City Transit Authority

Romney v New York City Tr. Auth. 2004 NY Slip Op 04309 [8 AD3d 254] June 1, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

Thomas Romney, Appellant,
v
New York City Transit Authority, Respondent.

—[*1]

In an action, inter alia, to recover damages for discrimination based on race pursuant to, among other things, Title VII of the Civil Rights Act of 1964, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Bruno, J.), dated December 24, 2002, as granted that branch of the defendant's cross motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for retaliation against the plaintiff for filing charges with the Equal Employment Opportunity Commission.

Ordered that the order is affirmed insofar as appealed from, with costs.

In a prior appeal from so much of an order of the Supreme Court, Kings County, as dismissed the plaintiff's first cause of action on procedural grounds, this Court reinstated so much of the first cause of action as sought to recover damages for retaliation against the plaintiff for filing charges with the Equal Employment Opportunity Commission (hereinafter the EEOC) on April 3, 1990, alleging, inter alia, race discrimination (see Romney v New York City Tr. Auth., 294 AD2d 481 [2002]). We reinstated the claim and remitted the matter to the Supreme Court, Kings County, for a determination on the merits of that branch of the defendant's cross motion which was for summary judgment dismissing that claim. Upon remittitur, the Supreme Court granted that branch of the cross motion.

To establish a prima facie case of retaliation, a plaintiff must demonstrate that (1) he or she was engaged in a protected activity, (2) the employer was aware of the activity, (3) he or she [*2]suffered an adverse employment action, and (4) there was a causal connection between the protected activity and the adverse action (see Distasio v Perkin Elmer Corp., 157 F3d 55, 66 [1998]; Hernandez v Bankers Trust Co., 5 AD3d 146 [2004]; Pace v Ogden Servs. Corp., 257 AD2d 101, 104 [1999]). The Supreme Court correctly concluded that there was no evidence that the plaintiff's employer knew of the April 1990 EEOC filing, and therefore, the required element of knowledge of the protected activity was lacking. Summary judgment is properly granted in a discrimination case where the defendant demonstrates "an absence of even a prima facie case" (Ferrante v American Lung Assn., 90 NY2d 623, 631 [1997]). Since the defendant demonstrated the "absence of even a prima facie case," the Supreme Court properly granted that branch of the cross motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for retaliation (Ferrante v American Lung Assn., supra; Martinez v Triangle Maintenance Corp., 293 AD2d 721, 722 [2002]; Pace v Ogden Servs. Corp., supra at 105). Krausman, J.P., Luciano, Cozier and Spolzino, JJ., concur.