Armstrong v Sensormatic/ADT

[*1] Armstrong v Sensormatic/ADT 2010 NY Slip Op 52464(U) Decided on November 29, 2010 Supreme Court, Bronx County Ruiz, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 29, 2010
Supreme Court, Bronx County

Ronald K Armstrong, Plaintiff,

against

Sensormatic/ADT, Defendant.



22031/2005



The plaintiff"s attorney was David Zevin, Esq., 8A Oakland Avenue, Glen Head, NY 11545. The defendant's attorney was Ogletree, Deakins, Nash, Smoak & Stewart, P.C., 521 Fifth Avenue, Suite 1700, New York, NY 10017.

Norma Ruiz, J.

The following papers numbered 1 to 8 Read on this motionSUMMARY JUDGMENT

Noticed on 3/16/10 and duly submitted as No. 2 on the Motion Calendar of 5/24/10

Recitation, as required by CPLR 2219(a), of the papers considered in the review of this Motion

to:PapersNumbered

Notice of Motion, Affidavits Annexed and

Memorandum of Law.............................................................1-3

Answering Affidavits and Memorandum of Law ...................4-6

Replying Affidavits and Memorandum of Law ......................7-8

Other:

Upon the foregoing papers, the foregoing motion(s) [and/or cross-motions(s), as indicated below, are consolidated for disposition] and decided as follows:

Defendant Sensormatic/ADT's motion for summary judgment pursuant to CPLR § 3212 is granted upon a review of the moving papers and opposition submitted thereto.

This is an employment discrimination and retaliation action pursuant to Executive Law § 290 known as the New York State Human Rights Law. Plaintiff, an African American, was employed by the defendant for four years. Plaintiff alleges that the decision to terminate his employment was in retaliation for his complaints of being denied a position on defendant's all white male sales force, as well as, complaints of discriminatory favoritism shown to the young women in the office. The plaintiff also contends that ADT's failure to promote him to the position of salesman was discriminatory in nature. [*2]

ADT moves for summary judgment on the grounds that its decision to terminate the plaintiff's employment was based on an legitimate non discriminatory business reason. In addition, movant argues that the plaintiff's failure to promote claim is time barred.

ADT contends it fired the plaintiff due to his lack of judgment in giving Luz Plasencia ("Plasencia"), a subordinate employee, an inappropriate note. It is undisputed that on October 1, 2002, Plasencia asked her fellow co-worker and the plaintiff herein if they wanted anything from the store (some records indicate it was Starbucks). In response, the plaintiff handed Plasencia a fold post-it note and directed her to give it directly to the girl at the register because she personally knew the plaintiff. The folded note read: "This is a stick up. Give me all your money." After learning what the note said, Placensia became concerned with regards to the plaintiff's intentions with such a note. Especially she thought if she had not learned the contents of the note and handed it over to the store's cashier as instructed by the plaintiff she could have gotten into trouble. The note so disturbed Plasencia that she resigned from her position a few days after the incident.ADT points out the plaintiff had already been disciplined for this exact behavior. On January 24, 2000, a co-worker complained the plaintiff showed her an email which read as follows:

a man gets home, runs to his house, throws open the door and jubilantly shouts Honey, pack your bags! I won the lottery!' The wife says, I cant believe it!Thats great! Should I pack for the ocean or should I pack for the mountains?' He says, I don't care, just get the [f**k] out!"

As a result, the plaintiff was issued a written warning which he acknowledge and signed. The Job Performance Counseling Form is dated February 1, 2000 stated that Sensomatic did not condone such behavior and that the plaintiff "must refrain totally from sharing anything with an employee that is not of a purely business nature." In addition, the plaintiff was warned that the consequences for not correcting the performance problem would result in further disciplinary action up to and including termination may occur.

While the legislature has recently overturned judicial precedent with regards to the standards for a claim under the City Human Rights Law , the standards for a claim under the State Human Rights Law continue to remain the same as the federal standards (see Williams v. New York City Housing Authority, 61 AD3d 62 [1st Dept 2009]). The Court of Appeals set forth those standards in Forrest v Jewish Guild for the Blind, 3 NY3d 295 (2004) stating that a plaintiff alleging racial discrimination has the initial burden to establish a prima facie case of discrimination.

To meet this burden, plaintiff must show that (1) [he] is a member of a protected class; (2) [he] was qualified to hold the position; (3) [he] was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. The burden then shifts to the employer to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision.' In order to nevertheless succeed on [his] claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating BOTH that the stated reasons were false AND that discrimination was the real reason.

[*3]Forrest, supra at 305 (internal citations omitted)(emphasis added). The Court went on to hold that to prevail on a motion for summary judgment "defendants must demonstrate either plaintiffs failure to establish every element of intentional discrimination OR having offered legitimate, nondiscriminatory reasons for their challenged action, the absence of a material issue of fact as to whether their explanations were pretextual"(id [emphasis added]).

In opposition, the plaintiffs concedes he gave Placensia the aforementioned note but he insists it was a joke. He further contends he was not going to let Placensia out of the office with the note in hand. The plaintiff further concedes that his claim for failure to promote is untimely since it was commenced after the expiration f the statute of limitations. He insists, however, that the claim is still viable pursuant to the continuing violations doctrine. Plaintiff's reliance on the continuing violations doctrine is misplaced. "Absent any details of new discrete acts, rather than the effects of past acts . . .plaintiff's allegations are insufficient to establish a continuing violations claim" (Donas v. City of New York, 62 AD3d 504, 505 [1st Dept 2009]).

The Court finds the undisputed fact that the plaintiff gave two employees inappropriate notes sufficient to establish a legitimate, nondiscriminatory explanation for the plaintiff's termination. Upon reviewing all of the arguments and evidence set forth in the plaintiff's opposition, the court finds he did not offer sufficient evidence in rebuttal to show that defendants actions in this regard were false and that discrimination was the real reason he was terminated (see Forrest supra; Ferrante v. American Lung Ass'n, 90 NY2d 623, 630 [1997]). Thus, the claim of retaliatory firing based on the plaintiff's complaints of discriminatory favoritism shown to the young women in the office must be denied since the plaintiff failed to rebut defendant's showing of termination for a legitimate, nondiscriminatory reason (see Clark v. Morelli Ratner, PC, 73 AD3d 591 [1st Dept 2010]).

According, the motion is granted and the plaintiff's action is dismissed.This constitutes the decision and order of the Court.

Dated:

Bronx, New YorkNORMA RUIZ, J.S.C.

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