Barra v Quigley

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Barra v Quigley 2018 NY Slip Op 33349(U) December 14, 2018 Supreme Court, New York County Docket Number: 161466/2017 Judge: Barbara Jaffe Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 161466/2017 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/24/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: PART HON.BARBARAJAFFE IAS MOTION 12EFM Justice ________._-------------------------~---------------------------------------------X INDEX NO. 161466/2017 LAWRENCE BARRA, MOTION DATE Plaintiff, MOTION SEQ. NO. 001,002 -v- JOHN QUIGLEY, individually and as Regional Vice President, and CHARTER COMMUNICATIONS, INC., successor to Time Warner Cable of New York City, LLC., DECISION AND ORDER Defendants. ---------------------------------------------------------------------------------X The following e-filed documents, listec;tby NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 16, 17 dismiss were read on this motion to The following e-filed documents, listed by NYSCEF document number (Motion 002) 18, 19, 20, 21, 26, 27, 28, 29, 30, 31 dismiss were read on this motion to By notice of motion, defendants move pursuant to CPLR 321 l(a)(7) for an order partially dismissing the complaint. Plaintiff opposes. I. PROCEDURAL BACKGROUD On or about Decerribe.r 28, 2017, plaintiff filed a summons and complaint (NYSCEF l); defendants filed a pre-answer motion to dismiss (mot. seq. one) (NYSCEF 3). While the motion pended, plaintiff filed an amended complaint (NYSCEF 9), and thereafter opposed the motion to dismiss the original complaint (NYSCEF 11 ). Defendants replied as to their motion to dismiss the original complaint (NYSCEF 16), and shortly thereafter filed the instant motion to dismiss Page 1of7 161466/2017 BARRA, LAWRENCE vs. QUIGLEY, JOHN Motion No. 001 002 1 of 7 ------·~----------·--·•r•-~ ---~ ·- -----·~,·--•·- ~-- - [* 2] INDEX NO. 161466/2017 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/24/2018 the amended complaint (mot. seq. two) (NYSCEF 18). Consequently, the motion to dismiss the original complaint is academic. II. AMENDED COMPLAINT CNYSCEF 21) Plairl'tiff alleges the following: ' Plaintiff, born in 1955, was employed by defendant Charter Communication, Inc., previously Time Warner Cable of New York City, LLC. (Time Warner), as a general superintendent for more than 20 years and received positive performance appraisals and bonuses. On January ~4, 2015, he met with defendant Quigley, division president and to whom plaintiff directly reported, and Time Warner's vice-president of human resources. At the meeting, Quigley told plaintiff that "there was no room" for him at the company and asked whether he "would retire and be with his family." Plaintiff replied that he did not plan on retiring soon. Quigley then.reminded him that he was "turning 60 in September:" In response to plaintiffs request for ai;i explanation as to why there was no room for him, Quigley said that an entity rumored to be planning to buy Time Warner had no need for a general superintendent. Quigley then offered to pay plaintiff until he turned 60 years old if he retired. Plaintiff refused and was . immediately .:demoted to foreman, resulting in a decrease in pay, benefits; and bonuses. Plaintiff was subjected to numerous comments before and after his demotion, including "you don't have much more time left," references to "gray hair" and "no hair," and calling plaintiff "Mr: Barra" rather than "Larry," as he had always been referred. Plaintiffs demotion was not an isolated incident of discrimination, but the product of a "broader effort" to replace older employees with younger managerial employees with a concomitant .lack of experience and aptitude, an effort that is being litigated in another part of . this court in Bennett v Time Warner Cable, Inc., No. 152686/2014. There, older employees claim Page 2 of 7 161466/2017 BARRA, LAWRENCE vs. QUIGLEY, JOHN Motion No. 001 002 2 of 7 [* 3] INDEX NO. 161466/2017 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/24/2018 to have been demoted from general foreman to foreman as a result of age discrimination, which Charter denies, claiming that the demotions are the product of the elimination of overlapping layers of supervision. Even if defendant did not intend to discriminate based on age, it created a disparate impact on older workers. Consequently, plaintiff alleges unlawful age discrimination in violation of New York City Human Rights Law (NYCHRL) § 8-107 and the New York State Human Rights Law (NYSHRL) § 296. III. CONTENTIONS A. Defendants (NYSCEF 18-21) Defendants allege that plaintiff fails to state a claim for disparate impact absent an allegation of the existence of a "facially neutral policy" (NYSCEF 19); and that at best, plaintiff only claims intentional discrimination against him individually. They maintain that Bennett, the other employment discrimination case presently being litigated, is inapposite because the policy in issue dates back to 2013 and pertains to a different job title. B. Plaintiff (NYSCEF 27-30) Plaintiff contends that given the procedural posture and the liberal pleading standards of the anti-discrimination laws, the allegation that his demotion was part of "a broader effort" states a policy, and that the connection between his demotion and the policy at issue in the other case raises a triable fact. He argues that the difference in job title is irrelevant absent any requirement that a discriminatory policy apply to employees with the same job title, and that a sole assertion. of intentional conduct is permissible. In any event, he asserts, in the alternative, a claim of disparate impact. Page 3 of 7 161466/2017 BARRA, LAWRENCE vs. QUIGLEY, JOHN Motion No. 001 002 3 of 7 [* 4] INDEX NO. 161466/2017 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/24/2018 C. Reply (NYSCEF 31) Defendants reiterate that plaintiff fails to allege a practice or policy distinct from any claim of intentional discrimination. Although they do not refute that disparate impact may be i ' . pleaded as an alternative to disparate treatment, they argue that the alternative pleading does not obviate the need for pleading a specific facially neutral policy. I! The alleged "broader effort," defendants maintain, reflects an inability to identify a specific policy that yields a disparate impact. They, moreover, assert that the policy at issue in Bennett is eritirely different from that in issue here given the substantial difference between the job titles of general foreman and general superintendent, and the expressed reasons for demotion in each case.' IV. ANALYSIS Pursuant to CPLR 321 l(a)(7), a party may move at any time for an order dismissing a cause of action asserted against it on the ground that the pleading fails to state a cause of action. " In deciding the motion, the court must liberally construe the pleading, accept the alleged facts as true, and accord the non-moving party the benefit of every possible favorable inference. (Nonnon v City of New,. York, 9 NY3d 825 [2007]; Leon v Martinez, 84 NY2d 83, 87 [1994]). The court need only determine whether the alleged facts fit within any cogniza5le legal theory. ' (Id.; Siegmufl,d Strauss, Inc. v E. I49th Realty Corp., 104 AD3d 401 [1st Dept 2013]). Thus, the reviewing court must determine whether the pleading states a cause of action, not whether the proponent has a cause of action. (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; Sokol v !I - ' Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]). " In de!ermining whether the facts alleged in the complaint and inferences arising I' therefrom state a cause of action for employment discrimination, plaintiffs allegations must be Page 4 of 7 161466/2017 BARRA, LAWRENCE vs. QUIGLEY, JOHN Motion No. 001 002 4 of 7 [* 5] INDEX NO. 161466/2017 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/24/2018 construed in, his favor, especially where the NYSHRL and NYCHRL are relied on. (Vig v New York Hairspray Co., L.P., 67 f}D3d 140 [1st Dept 2009] [employment discrimination cases require only;notice pleading; plaintiff need not plead specific facts establishingprimafacie case of discrimination]). The provisions of the NYCHRL are to be construed "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio v City ofNew ':York, 16 NY3d 472, 478 [2011]), and with due regard for fulfilling the law's remedial goals (Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 34 [1st Dept 2011], Iv denied 18 NY3d 811 [2,012]; Williams v New York City Haus. Auth., 61AD3d62, 66 [l5t Dept 2009], Iv denied 13 NY3d 702). It is "to be more broadly interpreted than similarly-worded federal or State antidiscrimination provisions." (Singh v Covenant Aviation Sec., LLC, 131 AD3d 1158, 1161 [2d Dept 2015]). A claim of unlawful discrimination based on disparate impact is established when the plaintiff demonstrates that the defendant had a policy or practice that results in a disparate impact :! to the detriment of a protected group. (NYCHRL § 8-107; People v New York City Transit Auth., 59 NY2d 343, 348-349 [1983]; Mete v New York State Office of Mental Retardation & Developmental Disabilities; 21 AD3d 288, 296 [1st Dept 2005]). Defendants concede that plaintiff, due to his age, falls within a protected group under both statutes. At issue is only whether he alleges a facially neutral policy resulting in a disparate impact on ol<;ler employees. For a.policy to be unlawful under a disparate impact theory, it must be neutral on its face and in terms of intent. (New York City Transit Auth., 59 NY2d at 348-349). A policy ex~ressly based on replacing older employees with younger employees is not neutral on its face, but gives 161466/2017 BARRA, LAWRENCE vs. QUIGLEY, JOHN 5 Motion No. 001,, 002 Page 5 of 7 of 7 [* 6] INDEX NO. 161466/2017 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/24/2018 rise to an inference of intentional age discrimination. Thus, the "broader effort" alleged by plaintiff cannot be a basis for a disparate impact claim. Nonetheless, Bennett, wherein defendants argue that their sole intent is to eliminate overlapping layers of supervision, considered in light of the liberal pleading standards afforded under the pertinent statutes, support plaintiffs assertion that his demotion was part of this same facially neutral policy. Having alleged that his former position, general superintendent, was on the same level as the area vice-presidents to whom he reported, plaintiff dem.onstrates that he ii was part of the same chain of command, and thus his demotion to foreman, like those in issue in Bennett, may be the same. Moreover, the justification for demotion given in Bennett, that the role of general fo,reman was unnecessarily duplicative and cumbersome, is not so dissimilar from that proffered here, that the role of general superintendent was no longer needed. Defendants thus fail to demonstrate a significant difference between a general superintendent being demoted to foreman and a general foreman being demoted to foreman. Likewise, defendants offer no explanation as to how the demotions in Bennett are so remote in time as to render it impossible :I that plaintiffs demotion was the product of the same policy. Whether plaintiff was actually subject to that policy is a matter of fact, not to be resolved at this stage of the litigation. V. CONCLUSION Accordingly, it is hereby ORDERED, that defendants' motions to dismiss are both denied in their entirety; and it is further ORDERED, that defendants are directed to serve and file an answer to the amended complaint within 30 days of the date of this order; and it is further Page 6 of 7 161466/2017 BARRA, LAWRENCE vs. QUIGLEY, JOHN Motion No. 001 002 6 of 7 /_ [* 7] INDEX NO. 161466/2017 NYSCEF DOC. NO. 33 RECEIVED NYSCEF: 12/24/2018 ORDERED, that the parties appear for a preliminary conference on March 6, 2019 at 2:15 pm, at 60 Centre Street, Room 341, New York, New York. 12/14/2018 DATE CHECK ONE: CASE DISPOSED GRANTED 0 ~ DENIED APPLICATION: :: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT D REFERENCE Page 7 of 7 161466/2017 BARRA, LAWRENCE vs. QUIGLEY, JOHN Motion No. 001 002 - OTHER_ GRANTED IN PART . 7 of 7

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