Bumpus v New York City Tr. Auth.

[*1] Bumpus v New York City Tr. Auth. 2008 NY Slip Op 50254(U) [18 Misc 3d 1131(A)] Decided on February 13, 2008 Supreme Court, Kings County Miller, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through February 25, 2008; it will not be published in the printed Official Reports.

Decided on February 13, 2008
Supreme Court, Kings County

Tracy Bumpus, Plaintiff,

against

New York City Transit Authority and "Jane Doe," Defendants.



3512/07



The plaintiff is represented by Housing Works, Inc., by Robert F. Bacigalupi,

Esq., and Ignacio Jaureguilorda, Esq., of counsel.

The defendant is represented by Office of the General Counsel, New York

City Transit Authority, by Kimberly Westcott, Esq., Melissa Katz, Esq., and Richard Schoolman, Esq., of counsel.

Robert J. Miller, J.

In this action, the defendant "Jane Doe," an employee of the New York City Transit Authority (the "NYCTA"), moves for an order, pursuant to CPLR §306-b and §3211(A)(2), dismissing the complaint of Tracy Bumpus ("Bumpus"), a transgender woman[FN1] who alleges that the defendant Jane Doe (subsequently identified as Lorna Smith) ("Doe-Smith") verbally harassed and humiliated her by using derogatory names and bigoted epithets because of plaintiff's gender identity and expression. [*2]

On January 29, 2007, the plaintiff commenced the instant action in which she alleged, among other things, that Doe-Smith discriminated against her on July 19, 2006 by using uncivil language ("bigoted epithets") because of plaintiffs "gender and identity and expression" in violation of the New York City Administrative code 8-107(4)(a) (in a part of that code referred to as the New York City Human Rights Law). The complaint also alleges that the NYCTA negligently trained, supervised, and retained Doe-Smith.

As set forth in the complaint, the plaintiff is a 40 year-old transgender woman. She was born anatomically male, Ms. Bumpus has had a female gender identity, and lives and dresses each day as a woman. Bumpus is on hormone therapy, prescribed by her doctor in order to change her physical appearance to that of a woman. According to the plaintiff's complaint, defendants' discriminatory acts consisted of the following: On July 19th, Ms. Bumpus entered the Nostrand Avenue station of the "A" subway line and sought assistance from a NYCTA service agent on duty outside the service booth because her Metrocard was not functioning properly;After Bumpus's request for assistance, the NYCTA employee [Lorna Smith], using a loud voice spoke a steady stream of discriminatory, transgender-phobic epithets in a pointed manner towards the plaintiff, for a period of approximately ten minutes and in the presence of other commuters;Other passengers who had witnessed Doe-Smith speaking to Bumpus followed the plaintiff off the subway car she had taken and proceeded to verbally harass and threaten her;That same day plaintiff made a complaint to the NYCTA;On July 20th, 2006 Bumpus was called by a NYCTA supervisor in response to her complaint, at which time she described the incident;On July 25th, Bumpus entered the same subway transit station at the

Nostrand Avenue "A" subway. Doe-Smith was present and after seeing Bumpus, pointed her out to two of her colleagues, and all three pointed and laughed at the plaintiff. [*3]

On October 9, 2006 plaintiff served a Notice of Claim on the NYCTA for claims of negligent training , supervision and retention. On December 8, 2006, plaintiff attended a statutory hearing required under General Municipal law 50-h. This action was commenced on January 29, 2007. The NYCTA was able to identify who the subway station employee was, agent Lorna Smith. The Transit Authority pursuant to a collective bargaining agreement with the employee's union scheduled disciplinary hearings on March 5, 2007, April 5, 2007 and April 26, 2007. Plaintiff was subpoenaed to each hearing but plaintiff did not appear.On May 1, 2007, the disciplinary proceeding was dismissed.

On January 30, 2007, the summons and complaint was served on the NYCTA naming the NYCTA and "Jane Doe" as defendants. On March 16, 2007 a motion to dismiss the complaint for failure to state a cause of action for negligent training, supervision and retention was made by defendant NYCTA. On July 11, 2007, Justice Sylvia Hines-Radix denied the motion. The Defendant appealed and the Appellate Division, Second Department, on January 15, 2008, affirmed Justice Hines-Radix' decision. (2008 NY Slip Op. 00213)

The individual defendant now moves to dismiss the complaint on two grounds. The first is that plaintiff served the complaint on the defendant Doe-Smith outside the 120-day period required by CPLR § 306-b.

Since plaintiff was unaware of the name of the employee at the time of the filing of the complaint, the Court finds that there has been a display of reasonable due diligence on the part of plaintiff in attempting to serve Doe-Smith, due to the difficulty in finding the contact information, location of transit worker, common nature of the transit workers last name "Smith," and the difficulty in having service effected.

Accordingly, in the interest of justice, the Court finds good cause for the late service. (Jordan v City of New York, 38 AD3d 336 [1st Dept. 2007]; Leader v Maroney, Ponzini & Spencer, 97 NY2d 95 [2001].)

The second ground to dismiss is for lack of subject matter jurisdiction pursuant to CPLR § 3211(a)(2) because Doe-Smith is an employee of NYCTA and as such pursuant to the New York Public Authorities Law (PAL) § 1266(8) immunity from liability under the New York City Human Rights Law exists. Defendant relies on that section which states in part that:

"...no municipality or political subdivision, including but not limited

to a county, city, village, town or school or other district shall have jurisdiction over any facilities of the authority and it's subsidiaries,

and New York CityTransit Authority and its subsidiaries, or of their

activities or operations. The local laws, resolutions, ordinances, rules [*4]

and regulation of a municipality or political subdivision, heretofore

or hereafter adopted, conflicting with this title or any rule or regulation

of the authority or its subsidiaries, or New YorkCity Transit Authority

or its subsidiaries, shall not be applicable to the activities or operation

of the Authority and its subsidiary, and the New York City Transit Authority and its subsidiaries except such facilities that are devoted

to purposes other than transportation or transit purposes."

On a motion to dismiss, the court accepts the allegations set forth in the complaint as true. (Mannon v Mannno, 249 AD2d 372 [2nd Dept 1998], DiMicco Bros v Con Ed,

8 AD3rd 99 [1st Dept 2004].)

The New York City Human Rights law as set forth in the Administrative

Code of New York City Section 8-107(4)(a) states:

It shall be an unlawful discriminatory practice for any person ...because of the actual or perceived...gender, sexual orientation ...of any

person, directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof, or, directly or indirectly, to make any declaration ...to the effect

that any of the accommodations, advantages, facilities and privileges

of any such place or provider shall be refused, withheld from or denied

to any person on account of... gender...or that the patronage or custom

of any person belonging to, purporting to be, or perceived to be, of any particular... gender... is unwelcome, objectionable or not acceptable,

desired or solicited.

The NYCTA acknowledges in it's memoranda of law that the word "gender" for purposes of the City Administrative Code Section has been defined to include "gender identity or expression" (City Administrative Code 8-101 (23)).

The New York City Human Rights Law sets forth a broad purpose. The legislative history contemplates that the Law be independently construed with the aim of making it the most progressive in the nation. (Selanovic v NYSE Group, Slip Copy, 2007 WL4563431 (SDNY), Sorrenti v City of New York, 17 Misc 3rd 1002(A), Slip Copy, 2007 WL 2772308 (table), [Sup. Ct., NY Co. 2007], Farrugia v North Shore University Hospital, 13 Misc. 3rd 740 [Sup. Ct., NY Co. 2006].)

The New York City Human Rights Law was intended to be more protective than [*5]the state and federal counterpart. As the court recently stated in Jordan V Banks Advertising, Inc., 11 Misc 3rd 764, at 770 (Sup. Ct. NY Co. 2006): "in enacting the more protective Human Rights Law, the New York City Council has exercised a clear policy choice which this Court is bound to honor."

Defendant argues that the 2000 amendment to the PAL was designed to over turn the case of Levy v City Commission on Human Rights, 85 NY2nd 740 (1995) and thereby exempting the NYCTA and its employees from discrimination claims. Levy held that the NYCTA is subject to the jurisdiction of the New York City Commission on Human Rights. However, the position set forth by the NYCTA and its employee has been considered by both state and federal courts. Courts have rejected the argument that the amendment to the PAL exempts the NYCTA and its employees from the jurisdiction of the New York City Human Rights Law. (Muhammad V NYCTA, 450 F.Supp2nd 198, [E.D.NY 2006], Stamm v NYCTA, 04 Civ. 2163, 2000 U.S. Dist. LEXIS 30076 [January 31, 2006], Bogdon v New York City Transit Auth., No 02 Civ 9587[GEL], 2005 WL 1161612 [S.D.NY 2005], Rios v Metro. Transp. Auth., Index No. 13206/03, 2004 WL309154 [Richmond Co. Sup. Ct. Dec. 22, 2004], Everson v NYCTA, 216 F. Supp. 2nd 71 [E.D.NY 2002].)

The court in Bogdon expressly rejected the NYCTA argument that the 2000 amendment to the PAL had the effect of overruling the New York Court of Appeals holding in Levy, noting that "while the amended statue provided that no municipality....shall have jurisdiction' over the NYCTA, this blanket provision prohibition appeared to be qualified by a subsequent provision which provided that only local laws that conflicted with the Public Authorities Law should be inapplicable, and then only to facilities ...devoted to...transportation and transit services."

The Court here finds that the NYCTA is not exempt from local laws that do not interfere with the function and purpose of the Transit Authority. (Bogdon v New York City Transit Auth. No 02 Civ 9587[GEL], 2005 WL 1161612 [S.D.NY 2005], Everson v NYCTA, 216 F. Supp. 2nd 71 [E.D. NY 2002], Parker v MTA, 17 Misc 3d 1112(A), 2007 WL 2962737 [NY Sup], Hurta v NY City Transit Auth. , 290 AD2nd 33 [1st Dept 2003], Reilly V Transport Workers Union, N.Y.L.J. Jan 2, 2003 [Sup. Ct. NY County 2003].)

In the instant case, the complaint alleges that plaintiff was harassed and humiliated by an employee of the NYCTA merely because she is a transgender woman and was present in the subway station asking for assistance and waiting for a train. The Human Rights Law affords protection to transgender people in New York City. By riding the subway, a transgender person doesn't become less of a person and lose the protection of the Human Rights Law. Clearly the discriminatory behavior of the transit worker is not within the function of the NYCTA. Moreover, defendant NYCTA concedes that the language used by the transit employee "if used would have violated Transit Authority [*6]Rules, and would merit discipline". Defendant further acknowledges in its memoranda of law to the Court, that Defendant Doe-Smith's "...alleged transgender-phobic comments... would certainly be without the scope of her duties...."

Defendant relies heavily on the case of Tang v NYCTA, 16 Misc 3d 703 (Supreme Court Kings County 2007) and urges the Court to follow Tang and reject the holdings of what the defendant's brief identifies as "some federal judges".

This Court finds the analysis of the federal courts in Muhammad, Stamm, Bogdon, and Everson more persuasive. Moreover, as noted by the court in Parker v MTA, 17 Misc 3d 1112(a), 2007 WL 2962737 [NY Sup.].

"Although Kim Tang v New York City Tr. Auth. (16 Misc 3d 703[2007]), which is cited by defendants, supports their position

that Public Authorities Law §1266(8) expressly exempts the MTA

from the jurisdiction of local laws, including the employment discrimination provisions of the New York City Administrative

Code, this court is not bound by that decision and concludes that,

despite the recent amendment to Public Authorities Law §1266(8),

the Court of Appeals would decide today, as it did in 1996, that

the New York City Transit Authority (and, here, the MTA) is (sic)

exempt from the reach of the New York City Administrative Code."

Accordingly, the motion of the defendant Doe-Smith to dismiss the complaint is denied.

This constitutes the decision and order of the Court.

E N T E R:

___________________________________

ROBERT J. MILLER

Justice [*7] Footnotes

Footnote 1:The Court utilizes feminine nouns and promouns to refer to Ms. Bumpus in conformity with Ms. Bumpus' gender identity and preference.

2