A New York City bus

In a $20 million discrimination lawsuit lodged against the New York City Transportation Authority by an African American former bus driver, a state appeals court has knocked down the transit authority and MTA Bus Co.'s attempt to dismiss a major portion of the woman's lawsuit centered on the agencies allegedly disciplining her repeatedly—including with dismissal—based on discriminatory reasons.

To date, the agencies have not tried to dismiss another major portion of plaintiff Ke'Andrea Nelson's case focused on allegations that she endured years of a hostile work environment at the LaGuardia Bus Depot in Queens that, according to her complaint, consisted of "blatant racism and gender discrimination, as if LaGuardia Depot existed in an era before the human rights laws."

Nelson, who was hired by the MTA Bus Co., an affiliate of the transit authority, in 2008, lays out in her 2013 complaint a long list of instances in which she contends that her direct supervisor at the bus depot and other employees there used the N-word and other racial slurs while demeaning and discriminating against her repeatedly and often.

"Damn, MTA is sure hiring a lot of [N-----s] and [S---s]!" she alleges her supervisor said to her early on in her tenure, which has lasted for more than a decade despite her being fired more than once and then reinstated.

She alleges that another point she was referred to at the depot as the "ugliest [N-----] ever and the fattest also," and a different point, in 2011, she was allegedly called an "ugly black fat gorilla [c---]."

And the complaint goes on to lay out more such alleged instances and slurs, while noting repeatedly that its allegations are examples and not all-inclusive.

But in their motion to dismiss part of Nelson's lawsuit, the transit authority and MTA Bus Co., which operate as public benefit corporations, did not address the alleged hostile work environment allegations lodged by Nelson.

Explained Manhattan Supreme Court Justice Kathryn Freed, in a 2019 decision that mostly denied the defendants' dismissal motion, which was focused on other parts of Nelson's complaint: "At the outset, defendants expressly assert that they are not seeking summary judgment on plaintiff's hostile work environment claim" and "they do not dispute or even address most of plaintiff's allegations underlying her claims that she was subjected to offensive and abusive comments and conduct, treated differently based on race, gender, and/or disability, and retaliated against for complaining about discrimination."

Instead, according to Freed, the transit authority and MTA Bus focused their partial summary judgment motion on Nelson's claims contending that she was wrongly disciplined in 2012 and 2013, and again in 2016, including with dismissals on at least two occasions, based on discriminatory reasons.

The transit authority and MTA Bus contended that there was no evidentiary support for such claims by Nelson. But Freed only sustained their partial dismissal motion to the extent that Nelson was rightfully disqualified as a bus driver and made a cleaner/helper instead in 2012 because she had bipolar disorder, and at about that time MTA Bus' standards regarding what medical conditions mandated bus driver disqualification were changed.

Otherwise, Freed, and now the Appellate Division, First Department, in a decision issued last week, have ruled that issues of fact remain concerning possible discrimination tied to other disciplinary actions taken against Nelson.

Moreover, both Freed and a unanimous First Department panel in its decision, point out that an arbitrator, on multiple occasions, has reversed disciplinary actions levied against Nelson. The arbitrator, for example, said Freed, reinstated Nelson to MTA employment after reviewing instances of alleged insubordination such as Nelson allegedly cursing at supervisors or refusing to leave the depot when ordered to do so.

The appellate panel said in its decision sustaining Freed's partial summary judgment ruling, "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."

Justices Rosalyn Richter, Judith Gische, Angela Mazzarelli and Ellen Gesmer further stated in their terse opinion, "Plaintiff [Nelson] 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.'"

Steve Efron, a Manhattan-based attorney for the transit authority and MTA Bus Co. in the lawsuit appeal, could not be reached for comment.

The MTA did not comment by the time of publication of this story.

Brian Heller, of Schwartz Perry & Heller in Manhattan, represented Nelson and could not be reached.