Kiner v Lift Line, Inc.

[*1] Kiner v Lift Line, Inc. 2006 NY Slip Op 52626(U) [21 Misc 3d 1112(A)] Decided on March 1, 2006 Supreme Court, Monroe County Galloway, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 1, 2006
Supreme Court, Monroe County

Edwin J. Kiner, Plaintiff,

against

Lift Line, Incorporated, Rochester-Genesee Regional Transportation Authority, and Lisa Lantz, Defendant.



00/5730



Appearances:

Van Henri White, Esq.

Attorney for Plaintiff

18 Grove Place

Rochester, NY 14605

Harris Beach PLLC

Daniel J. Moore, Esq., of counsel

Attorneys for Defendants Lift Line, Incorporated and

Rochester-Genesee Regional Transportation Authority

99 Garnsey Road

Pittsford, NY 14534

Warren Welch, Esq.

Attorney for DefendantLisa Lantz

80 Linden Oaks

Rochester, NY 14625-2809

Harold L. Galloway, J.

Plaintiff's motion for summary judgment and to amend his complaint to assert a cause of action for retaliation pursuant to Executive Law § 296 is denied. The cross motion of defendants Lift Line, Incorporated ("Lift Line") and Rochester-Genesee Regional Transportation Authority ("RGRTA") for summary judgment, and the cross motion of defendant Lisa Lantz for summary judgment, are granted.

Plaintiff was an at-will employee. He had no contract with Lift Line or RGRTA. Thus, his third cause of action for breach of contract against these defendants, and his fourth cause of action for tortious interference with contract against defendant Lisa Lantz, must be dismissed. [*2]

Plaintiff's second cause of action against all three defendants for intentional infliction of emotional distress is also dismissed. The complained-of conduct is not "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community", so as to support a claim for the intentional infliction of emotional distress. Murphy v American Home Prods. Corp., 58 NY2d 293, 303.

Plaintiff alleges a cause of action against all three defendants for violation of New York Executive Law § 296, based on allegations that Lantz's conduct, and Lift Line's and RGRTA's condonation of that conduct, created a hostile work environment. "In order to establish a hostile work environment, plaintiffs must establish that the conduct complained of was severe or pervasive' (Harris v Forklift Sys., 510 US 17, 21)[.]" Baliva v State Farm Mut. Auto Ins. Co., 286 AD2d 953. "Generally, isolated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment. In order to be actionable, the offensive conduct must be pervasive". Father Belle Community Ctr. v New York State Div. of Human Rights, 221 AD2d 44, 51.

In this case, of the eight alleged incidents of sexual harassment asserted by plaintiff, less than half were truly sexual in nature. Further, these incidents occurred over a span of two and a half years. Plaintiff alleged, inter alia, that defendant Lantz attempted to hit him in the face while waving her arms uncontrollably; that Lantz had tapped him on the low back and shoulder; that Lantz pushed her way between plaintiff and another co-worker, causing Lantz to come into physical contact with plaintiff; that Lantz made a comment about being crazy; and that plaintiff heard from somebody else that Lantz said she would spread a rumor that she and plaintiff were having an affair. The non-hearsay incidents establish, at most, rude behavior, but cannot sustain a finding of a sexually hostile work environment. Of the remaining incidents, plaintiff alleged, and Lantz admitted, that she grabbed his buttocks while he stood at the cashiers window in early 1998. Lantz was directed by their employer to go to a counseling session as a result, and she did so. Also early that year, she allegedly entered a room with several male co-workers and commented about their buttocks. In August of 1998, Lantz allegedly grabbed plaintiff's buttocks again. However, the notes of plaintiff's employer indicate that plaintiff had reported the touching as a "bumping" incident. Even so, there was a gap of several months between this conduct and the other prior alleged conduct, and after that, there was a gap of well over a year before any of the other alleged conduct occurred.

Viewing all of the evidence in a light most favorable to plaintiff, he has not produced evidence from which the existence of a sexually hostile work environment can be inferred. See Benette v Cinemark U.S.A., Inc., 295 F Supp 2d 243, 252-253 (W.D.NY 2003), citing Shepherd v Comptroller of Pub. Accounts, 168 F3d 871, 872-875 (5th Cir 1999); Baskerville v Culligan Int'l Co., 50 F3d 428, 430-431 (7th Cir 1995). Further, undercutting any claim of a sexually hostile environment is that plaintiff and Lantz did not work with each other during their regular work hours, as they each drove their own bus separately, and encountered each other only during morning check-ins and evening check-outs.

Plaintiff has also moved to amend his complaint to assert a cause of action against defendants Lift Line and RGRTA for retaliation pursuant to Executive Law § 296, alleging that he has been denied opportunities for overtime, which should have been given to him based on his [*3]seniority, in retaliation for him having filed this sexual harassment suit against these defendants. The dismissal of plaintiff's sexual harassment claim does not automatically bar him from pursuing a claim for retaliation. See Pace v Odgen Servs. Corp., 257 AD2d 101, 104. To establish a prima facie case of retaliation, plaintiff must show that: (1) he has engaged in a protected activity under Executive Law § 296; (2) Lift Line and RGRTA were aware that he engaged in this protected activity; (3) he suffered from a disadvantageous employment action based on this activity; and (4) there is a causal connection between the protected activity and the adverse action taken by Lift Line and RGRTA. "Once plaintiff has met this initial burden, the burden then shifts to defendants to present legitimate, independent and nondiscriminatory reasons to support their actions. Then, if defendants meet this burden, plaintiff has the obligation to show that the reasons put forth by defendants was merely a pretext." Id.

Here, plaintiff did engage in a protected activity by commencing the lawsuit alleging the sexually hostile work environment claim, and Lift Line and RGRTA were aware of the lawsuit. However, the proof submitted by Lift Line and RGRTA demonstrated that plaintiff filed grievances for the denial of the overtime opportunities, and was awarded compensation for each instance in which, despite his seniority, he was not offered the overtime. Thus, he has not suffered from any disadvantageous employment action that has not already been rectified. Further, Lift Line and RGRTA submitted proof that Lift Line's process to provide overtime opportunities to drivers with the most seniority had been the subject of many employee grievances over the years. Plaintiff made 32 grievances on this issue between May of 2000 and June of 2003, 12 of which were resolved in his favor. There was a total of 101 other grievances filed by different Lift Line employees during the same period. The employer-defendants attribute the many mistakes to the high turnover of Lift Line staff in 2001, which made the seniority process difficult to follow. Thus, these defendants have presented a legitimate, nondiscriminatory reasons for the denial of overtime opportunities to plaintiff. Plaintiff has wholly failed to establish that these reasons were a pretext for discrimination. In sum, plaintiff's proposed amendment is without merit.

As to plaintiff's allegations of assault against Lantz, he confines his allegations to incidents occurring on February 14 and March 22, 2000, which were within the one-year Statute of Limitations when he filed his complaint. Although plaintiff did not specifically allege battery against Lantz in his complaint, the incidents of which he complained do involve touching, and thus would appear to come within the scope of this tort. At his deposition, plaintiff testified that Lantz touched him on the back and shoulder in the former incident, and that she pushed her way between him and a co-worker in the latter incident. He said that he thought Lantz was rude, but he did not indicate that he was in any way frightened that she would harm him. To sustain a cause of action for assault, plaintiff must show that Lantz engaged in physical conduct that placed him in imminent apprehension of harmful contact. To establish a claim for battery, a plaintiff must show that there was bodily contact, made with intent, and offensive in nature. See Cotter v Summit Sec. Servs., Inc., 14 AD3d 475. The aforementioned facts do not rise to the level of assault or battery.

Finally, defendant Lantz raised a jurisdictional issue as a ground for obtaining summary judgment. She alleged that plaintiff had previously made a motion for an extension of time to serve her with his complaint, nunc pro tunc, because he had served her beyond 120 days from the [*4]date the complaint was filed. Plaintiff's motion was granted, but he never procured a copy of a signed order, and several years have passed. Even though, technically, no formal judicial order has been entered to validate plaintiff's service of the complaint on Lantz, and plaintiff can be said to have abandoned the motion, Lantz openly participated in discovery and litigated this case "on the merits" after the motion was granted orally, but never made a motion to dismiss the complaint on this basis. Accordingly, she has waived this objection. See CPLR 3211 (e). In any event, the complaint against her has been dismissed on the merits for reasons discussed herein.

Now, therefore, upon due consideration, it is hereby

ORDERED that plaintiff's motion for summary judgment and to amend his complaint to assert a claim for retaliation pursuant to Executive Law § 296 against defendants Lift Line, Incorporated ("Lift Line") and Rochester-Genesee Regional Transportation Authority ("RGRTA" is denied; and it is further

ORDERED that the cross motion of defendants Lift Line and RGRTA for summary judgment of dismissal is granted; and it is further

ORDERED that the cross motion of defendant Lisa Lantz for summary judgment of dismissal is granted; and it is further

ORDERED that plaintiff's complaint herein be and the same is hereby dismissed against all defendants.

DATED: March 1, 2006__/s/HLG____________________________

Rochester, New YorkHarold L. Galloway, J.S.C.