Abimola v Metropolitan Transp. Auth.

[*1] Abimola v Metropolitan Transp. Auth. 2012 NY Slip Op 52120(U) Decided on November 13, 2012 Supreme Court, New York County Singh, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2012
Supreme Court, New York County

Sotunde Abimola, Plaintiff,

against

Metropolitan Transportation Authority, JCMS, INC., JACOBS ENGINEERING GROUP, INC., URS CORPORATION and URS CORPORATION- NEW YORK, Defendants.



113439/11



Eric Andrew Suffin, Esq.

Counsel for Plaintiff

Michael Laurence Silverman, Esq.

Counsel for Defendant

Anil C. Singh, J.

In this action for damages, plaintiff Sotunde Abimola (Abimola) alleges that he was subjected to a hostile workplace and retaliatory discharge from employment at the "MTA East Side Access Project" due to racial discrimination. Defendant JCMS, Inc. (JCMS) moves, under motion sequence 002, for an order, pursuant to CPLR 3211 (a) (7) dismissing the amended complaint on the grounds that it fails to state a cause of action upon which relief can be granted. Under motion sequence 003, JCMS moves for an order, pursuant to CPLR 3211 (a) (7) dismissing the cross claim of URS and URS-NY for apportionment, contribution and indemnification. The motions, under motion sequence numbers 002 and 003, are consolidated for disposition.

Abimola commenced this action by filing a summons and complaint in the office of the New York County Clerk, on or about November 30, 2011, naming the MTA and JCMS as defendants. JCMS responded by moving to dismiss the complaint on the ground that plaintiff failed to state claims against it for hostile environment or retaliation under the New York City and State Human Rights Law (Executive Law § 290 et seq.; Administrative Code of the City of NY §§ 8 - 101 et seq. and 8 - 502). On or about March 2, 2012, plaintiff filed an amended complaint adding Jacobs, URS and URS-NY as co-defendants (the Amended Complaint), and by [*2]order, dated April 24, 2012, this court denied the initial motion as moot and without prejudice to JCMS to move against the Amended Complaint.

JCMS's current motion is opposed by plaintiff, and it is opposed jointly by defendants Metropolitan Transportation Authority (MTA) and Jacobs Civil Consultants Inc. /LiRo Engineers Joint Venture (Jacobs) sued herein as Jacobs Engineering Group, Inc., and by defendants URS Corporation and URS Corporation-New York (together, URS/URS-NY).

According to the Amended Complaint, Abimola was hired to work as an Office Engineer on November 11, 2005,[FN1] and between October 2009 and August 2011, he was jointly employed by the MTA, JCMS, Jacobs, and URS/URS-NY at the East Side Access Project.[FN2] He alleges that each of these defendants exercised control over the workplace, that he was "the only black ( blackish' or black') employee in the department," and that his work was supervised by URS/URS-NY employees Dan Connor (Connor) and Mike Pudjak (Pudjak).

He alleges that he was subjected to racial epithets and slurs at the workplace by both Connor and another URS/URS-NY employee, Jim Murray (Murray). These slurs included "the n word and white sh*t don't stink." Plaintiff complained to Connor about this behavior three separate times, and on each occasion, Connor became angry. Following the third complaint, in October 2009, Connor terminated plaintiff's employment.

Abimola complained about the circumstances of his termination to the MTA's Office of Civil Rights and to the Office of the Governor. Two weeks later, following an order from the Office of the Governor to look into the allegations, he was rehired. However, following his reinstatement, there was increased monitoring of Abimola's time and attendance and his supervisor, Pudjak, seemed not to want to work with him. As an example of Pudjak's demeanor, or attitude toward him, Abimola reports that Pudjak would not reply when he said "good morning," although Pudjak initiated morning greetings with others at the workplace. Plaintiff also alleges that: other persons, similarly situated to him, received performance reviews, but he did not; other similarly situated employees with less experience and less education received promotions, but he did not; at least one other similarly situated employee received a pay increase, but he did not; and his July 2011 request for a transfer was denied by Jacobs employee Mark Platz (Platz), without explanation.

Perceiving this as retaliatory conduct, on or about July 30, 2011, plaintiff sent a FOIL (Freedom of Information Law) request to Jayne Czik of the MTA, requesting a copy of the records pertaining to the investigation of MTA EEO Case No. 2009-9-30-01.[FN3] He reportedly received a telephone call from the MTA's Director of Procurement and Administration, Kenneth F. Lewaine, and during their conversation, plaintiff spoke of his feelings of retaliation, his having [*3]been passed over for promotions and not being given performance reviews/evaluations, and of Pudjak's negative demeanor toward him. Plaintiff also reports making similar complaints to an EEO Specialist at the MTA, David Sang, and to JCMS employee Jay Dutta (Dutta) about Pudjak's demeanor, and about, what appeared to be, retaliation for his prior complaints of discriminatory conduct.

According to the Amended Complaint, it was a Jacobs employee (Platz) who informed Abimola, on or about August 26, 2011, that his employment had been terminated. Abimola then spoke with Dutta, who did not give him an explanation for the discharge, other than to say that his services were no longer needed by the MTA. Abimola also received a letter from JCMS vice president Indira Jois, dated August 30, 2011, confirming his "separation of employment with JCMS and the MTA East Side Access Project (Jacobs); effective August 26, 2011" (Discharge Letter).

Finally, Abimola points out that no one at CM019 (without defining "CM019"), other than him, has had their employment terminated since 2009, and that Pudjak filled his former position, in spite of the fact that he had been let go, purportedly, because his services were no longer needed. He contends that these occurrences constitute further evidence of the discriminatory conduct which underlies his charges of hostile workplace and retaliation.

Central to JCMS's motion is its assertion that the pleadings fail to allege any wrongdoing on its part. Describing its employees' interactions with Abimola as scant and nonactionable, JCMS argues that its involvement with plaintiff was limited to plaintiff's own decision to inform Dutta about Pudjak's demeanor, about his transfer denial, and about his termination (Amended Complaint §§ 41, 44, 47), as confirmed by the Discharge Letter. JCMS contends that, instead of providing a basis for charging it with hostile work environment and retaliation, the allegations show that JCMS: did not exercise control over crucial elements of Abimola's employment; had no control over the workplace; had nothing to do with the alleged discriminatory and retaliatory acts by Connor, Murray and Pudjak, who were URS/URS-NY employees, and by Platz, who was a Jacobs employee; and was not aware of the protected activity and had nothing to do with the decision to terminate Abimola's employment. JCMS also argues that the Amended Complaint does not allege a factual basis for it to be held liable under the single employer doctrine (which does not appear be pled) or the joint employer doctrine and accuses plaintiff of relying on bald and conclusory assertions, rather than evidence, to defeat its motion.

For the following reasons, the motion to dismiss the Amended Complaint is denied.

"A racially hostile work environment exists when the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 310 [2004], quoting Harris v Forklift Sys., Inc., 510 US 17, 21 [1993]). Complaining of race-based discrimination is a protected activity, and an illegal retaliation occurs when an employee engages in a protected activity, the employer becomes aware that the employee did so, and that the employee suffered an adverse employment action as a result of having engaged in the protected activity (id. at 312 - 313; Executive Law § 296 [1] [a], [7]; Administrative Code § 8 - 107 [1] [a], [7]).

JCMS's repeated assertions regarding a lack of sufficient facts to support plaintiff's pleadings, or a lack of evidence to show it to be responsible or liable for the alleged hostile [*4]workplace conditions and retaliation, confuse the pleading requirements applicable to a motion to dismiss, pursuant to CPLR 3211 (a) (7), with the evidentiary standard of review applicable to a summary judgment motion, pursuant to CPLR 3212. On a motion to dismiss pursuant to CPLR 3211, the court must "accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Leon v Martinez, 84 NY2d 83, 87 - 88 [1994]). Furthermore, New York has long recognized that: a pleading will not be dismissed for insufficiency merely because it is inartistically drawn. Where a pleading is attacked for alleged inadequacy in its statements, our inquiry should be limited to whether it states in some recognizable form any cause of action known to our law. However imperfectly, informally or even illogically the facts may be stated, a complaint, attacked for insufficiency, is deemed to allege whatever can be implied from its statement by fair and reasonable intendment [internal quotation marks and citations omitted]

(Foley v D'Agostino, 21 AD2d 60, 65 [1st Dept 1964]). The test is not whether the complaint has been artfully drafted, but whether a cause of action can be reasonably implied from the allegations (see Ambassador Factors v Kandel & Co., 215 AD2d 305, 306 [1st Dept 1995]).

A review of the pleadings reveals factual allegations which are somewhat sparse and inartfully pled. Nevertheless, under the applicable standard, the Amended Complaint adequately states causes of action against JCMS for both hostile work environment and retaliation.Contrary to JCMS's contention, the pleadings do not demonstrate an absence of wrongdoing on its part. Rather, plaintiff's allegations describe a pattern of his being subjected to racial slurs in the workplace, complaining, to no avail, about what appeared to him as race-based discrimination directed toward him, being fired, lodging complaints about being fired because of his complaints, being rehired, being further mistreated by his supervisors and other employees due to his race, lodging additional complaints and being fired again. His pleadings include allegations against each of the co-defendants based on each defendant entity's control over the workplace, and/or supervisory capacities and responsibilities, and/or control over plaintiff's work assignments and transfer requests, and/or power to terminate plaintiff's employment. As the proponent of the motion to dismiss, JCMS must proffer more than unsubstantiated denials of responsibility for the workplace conditions and for Abimola's termination in order to defeat his claims (see Lawrence v Graubard Miller, 11 NY3d 588, 595 [2008]; Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; Artis v Random House, Inc., 34 Misc 3d 858, 863 [Sup Ct, NY County 2011]).

In contesting plaintiff's "joint employer" theory, JCMS denies being the employer of Connor, Murray and/or Pudjak, and contends that plaintiff's attempt to impute liability to it based on the actions of these individuals is tenuous and does not provide a basis for charging it with hostile work environment and/or retalilation. However, at this juncture, because the nature of the relationship between the various defendants, and the nature of the relationship between each named defendant and the plaintiff, are unclear, it cannot be stated whether plaintiff was employed by only one employer or whether he was jointly employed by some or all of the defendants. It is also unclear whether Connor, Murray and/or Pudjak were jointly employed by some or all of the co-defendants. [*5]

According to plaintiff, each defendant satisfies the prerequisite set forth in the New York City Human Rights Law for classification as an "employer" in that each employs four or more employees (Administrative Code § 8-102 [5]), and each exercised control over the workplace. Factors which must be considered in evaluating whether an individual worked for more than one entity during the relevant period of time, rendering him "jointly employed," include whether the alleged employer had the power to hire and fire the employee, to supervise and control the conditions of the employee's employment, including his work schedules and assignments, and whether the alleged employer had the power to determine and handle his salary, and employment records (see Matter of Carver v State of New York, 87 AD3d 25, 30 [2nd Dept 2011]; see also Zheng v Liberty Apparel Co. Inc., 355 F3d 61, 72 [2d Cir 2003]; Barfield v New York City Health and Hosps. Corp., 537 F3d 132 [2d Cir 2008]).

While discovery may clarify the issues related to joint employment, there is little question that JCMS provided Abimola with information relating to the details of his termination. Written on JCMS letterhead, the Discharge Letter states, in relevant part: It is with my sincere regret to officially inform you of your separation of employment with JCMS and the MTA East Side Access Project (Jacobs); effective August 26, 2011. As a result of this action, the following items will be implemented accordingly:

1. You will be paid on September 9, 2011 for 24 hours worked from August 22, to August 24, 2011 ...

2. You will also be paid 2 weeks Severance pay. . .

3. Your Vacation Accrual Balance . . . will be released . . . pending the successful return of the below list of items to . . . the JCMS Home Office, for return to MTA . . .

4. Your Medical Benefits will continue till the end of September and you will receive a COBRA application from our Insurance Agent . . . Should you have any questions regarding these items and the process, please contact . . . the JCMS Home Office . . . .

Although JCMS attempts to minimize the significance of the Discharge Letter, it constitutes probative evidence that JCMS, and possibly Jacobs and/or the MTA, were involved with some or all of the terms and conditions of plaintiff's employment. Neither plaintiff's allegations nor the Discharge Letter establishes, as argued in support of the motion, that JCMS was not involved with the decision to terminate Abimola or that JCMS was unaware and did not encourage, condone or approve of the, alleged, discriminatory conduct, precluding a CPLR 3211 (a) (7) dismissal of the Amended Complaint against it.

JCMS also seeks an order, pursuant to CPLR 3211 (a) (7), dismissing the cross claim of URS/URS-NY for apportionment, contribution and indemnification against it for failure to state a cause of action. In its cross claim, URS/URS-NY alleges that:

If Plaintiff sustained any damages in the manner set forth in the Amended Complaint through any carelessness, recklessness or negligence other than his own, such damages were sustained by reason of the active and primary carelessness, recklessness, and/or affirmative acts of omission or commission by Co-Defendants [MTA, JCMS and/or Jacobs] and/or their agents, servants and/or employees, without any active or affirmative negligence or conduct on the part of [*6]URS or [URS-NY] contributing thereto.

By reason of the foregoing, Co-Defendants MTA, JCMS, and/or [Jacobs] will be liable to URS and/or [URS-NY] under the doctrines of apportionment, contribution, and indemnification for the full amount of any verdict and judgment, or for a proportionate share thereof, that Plaintiff may recover against URS and/or [URS-NY] . . . .

The basis of JCMS's motion is that, because the Amended Complaint does not allege any wrongdoing on its part, URS/URS-NY's cross claim, which is premised on these allegations, is likewise, insufficient to withstand the dismissal motion.

URS/URS-NY, which submitted opposition to JCMS's motion to dismiss the Amended Complaint, argues that it is appropriate to seek, via its cross claim, an apportionment of damages, as well as contribution and indemnification against its co-defendants, including JCMS, in the event of a finding of culpable conduct against them, jointly and severally. URS/URS-NY explains that, not only is JCMS properly named as a defendant, based upon the contents of the Discharge Letter, but that the likelihood of its (URS/URS-NY) own involvement in the offending conduct is limited by the fact that neither plaintiff nor Connor nor Murray were URS/URS-NY employees at any time prior to December 31, 2011 (see Affidavit of URS/URS-NY Human Resources Manager Olga Santiago). Therefore, since a reasonable basis exists to expect that discovery will reveal the extent of JCMS's control over crucial elements of Abimola's employment, as well as workplace conditions, a dismissal of the cross claim would be premature and erroneous.

The fact that liability of the parties has not yet been determined, renders the cross claim an appropriate vehicle for an apportionment of damages, contribution and indemnification in the event culpable conduct is found involving some or all of the co-defendants. This includes JCMS, which, for the reasons set forth above, is still a defendant in this action.

Accordingly, it is

ORDERED that the motion by defendant JCMS, Inc., under motion sequence 002, for an order dismissing the amended complaint as against it is denied; and it is further

ORDERED that the motion by defendant JCMS, Inc., under motion sequence 003, for an order dismissing the cross claim of URS Corporation and URS Corporation-New York against it is denied.

Dated: November 13, 2012

ENTER:

_______________________

J.S.C. Footnotes

Footnote 1:The Amended Complaint does not identify the party or parties which hired him.

Footnote 2:The purpose of the East Side Access Project is to connect the Long Island Rail Road to Grand Central Station on the east side of Manhattan (see cross claims and the MTA website at www.mta.info/capconstr/esas/leadership.htm).

Footnote 3:The Amended Complaint does not indicate whether MTA EEO Case No. 2009-9-30-01 refers to his earlier complaint or to some other issue.