Singh v Covenant Aviation Sec., LLC

[*1] Singh v Covenant Aviation Sec., LLC 2013 NY Slip Op 50443(U) Decided on March 20, 2013 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 20, 2013
Supreme Court, Kings County

Krishna Singh, Plaintiff,

against

Covenant Aviation Security, LLC, Defendant.



10559/11



Plaintiff Attorney: Karpf, Karpf & Cerutti, P.C., 3331 Street Road, Two Greenwood Square, Suite 128, Bensalem, PA 19020

David I. Schmidt, J.

Upon the foregoing papers, defendant Covenant Aviation Security, LLC moves for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of Krishna Singh. Singh cross-moves for an order, pursuant to CPLR 3025, granting leave to amend his complaint.

Plaintiff commenced this action alleging that he was wrongfully terminated from his employment with defendant on the basis of race and/or national origin in violation of the New York State and New York City Human Rights Law. Plaintiff, who identifies himself as Indian, was formerly employed as a security guard with defendant, which provided security services at John F. Kennedy International Airport from February 1, 2007 through January 31, 2011 pursuant to a contract with the Port Authority. According to the original complaint, during the course of his employment plaintiff was harassed, degraded and subjected to derogatory comments from his Tour Supervisor, Ronald Denig, including being called a "curry eater." Plaintiff alleges that defendant "terminated" him on July 15, 2010 for falling asleep on the job. Plaintiff further states that "Denig did not terminate other non-Indians for the same reason(s) he terminated Plaintiff, and moreover, Denig was not terminated from Defendant when he himself slept on the job." [*2]

On March 27, 2012, plaintiff testified at an examination before trial (EBT). Plaintiff testified that Denig would make derogatory comments toward him about his Indian heritage, frequently referring to him as "curry eater" and "curry boy." Plaintiff testified that on one occasion, Denig showed him a picture of an Ethiopian person without teeth and stated that "this is what happens when you eat too much curry." Plaintiff also testified that Denig told him "you Indian people don't listen, you Indian people think you know everything." Plaintiff further testified that Denig enforced certain rules against plaintiff and others of Indian descent which he did not enforce against non-Indians, specifically rules involving talking during roll call and carrying bags while on duty. Plaintiff also mentioned instances where non-Indians were caught sleeping on the job by Denig but were not reported. Additional EBTs were taken of plaintiff's former colleagues, who testified, in essence, that Denig expressed disparaging opinions of Indians and that there were instances where non-Indian guards were caught sleeping but not reported by Denig to management.

Following completion of discovery, a note of issue was filed on June 28, 2012. Defendant subsequently brought the instant motion for summary judgment.

New York State Human Rights Law

To make out a claim for discrimination under the New York State Human Rights Law, plaintiff must meet his initial burden by showing (1) that 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 advwerse action occurred under circumstances giving rise to an inference of discrimination (see Forrest v Jewish Guild for the Blind, 3 NY2d 255, 306 [2004]; Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]). Plaintiff need only make a de minimis showing to establish a prima facie case (see Schwaller v Squire Sanders & Dempsey, 249 AD2d 195, 196 [1998]). 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" (Ferrante, 90 NY2d at 629 [citations omitted]). This burden shifting analysis was articulated by the United States Supreme Court in McDonnell Douglas Corp. v Green, 411 US 792 [1973])("McDonnel Douglas"). Once the presumption of discrimination is rebutted, plaintiff must prove that the legitimate reasons proffered by defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason (see Ferrante, 90 NY2d at 629-630).

"To establish entitlement to summary judgment in a case alleging discrimination, the defendant[] must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for [its] challenged actions, the absence of a material issue of fact as to whether [its] explanations were pretextual' " (Michno v New York Hosp. Med. Ctr. of Queens, 71 AD3d [*3]746, 746-747 [2010], quoting Forrest, 3 NY3d at 305 [2004]; see Apiado v North Shore Univ. Hosp. [At Syosset], 66 AD3d 929 [2009]; Balsamo v Savin Corp., 61 AD3d 622 [2009]; DeFrancis v North Shore Plainview Hosp., 52 AD3d 562 [2008]).

In support of its motion for summary judgment, defendant submits the affidavit of Kim Kolacinski, who identifies herself therein as defendant's Assistant Project Manager, "responsible for overseeing the entire operation, including disciplining employees for violating policies and procedures." Ms. Kolacinski avers that due to the public safety nature of its security operation at the airport, defendant had a zero tolerance policy for sleeping on the job. Ms. Kolacinski states that any employee found sleeping, or having the appearance of sleeping on the job would be terminated without exception. Ms. Kolacinski asserts that the Port Authority required defendant to maintain its zero tolerance policy for sleeping on the job and required defendant to terminate any employee who was found sleeping or having the appearance of sleeping on the job. Ms. Kolacinski explains that "Tour Supervisors" (such as Denig) were responsible for overseeing the work of defendant's employees, including reporting employees for violations of policies and procedures to management. Ms. Kolacinski states that although Tour Supervisors were responsible for reporting violations, they were not authorized to impose any discipline such as suspending or terminating an employee. Ms. Kolacinski asserts that Denig reported that he observed plaintiff sleeping on the job, and when asked about the incident, plaintiff admitted that he had been sleeping.

Ms. Kolacinski further states that defendant had a zero tolerance policy for discrimination or harassment based on race, ethnicity or national origin and that procedures were in place for employees to report violations of this policy to human resources or to management at the site. Ms. Kolacinski avers that to her knowledge, neither plaintiff nor any other employee ever reported that Denig had violated the policy against discrimination and harassment.

In addition to the affidavit of Ms. Kolacinski, defendant submits plaintiff's EBT testimony in which he admitted that he had been sleeping on the job after taking allergy medication, and copies of personnel records of the 27 employees of defendant terminated for sleeping on the job from 2007 to 2011, of which eighteen were black or African-American, four of which were Asian, three of which were Hispanic or Latino and two of which were white.

Even assuming that plaintiff satisfied his initial de minimus burden of demonstrating discriminatory conduct in his termination, the evidence submitted by defendant clearly established a legitimate, non-discriminatory reason for plaintiff's termination, and there is no evidence to raise an issue of fact as to whether defendant's reason was simply a pretext for discrimination. Plaintiff admitted to sleeping on the job, which mandated termination of the employee under the policies of both defendant and the Port Authority. In light of plaintiff's admission that he was sleeping while on duty, it may not be argued that defendant's reason for termination was false. [*4]

As a result, defendant is entitled to dismissal of plaintiff's claim for wrongful termination under the New York State Human Rights Law.

New York City Human Rights Law

A discrimination claim brought under the New York City Human Rights Law ("City HRL") must be interpreted "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible" (Albunio v City of New York, 16 NY3d 472, 477 [2011]). Under the 2005 Local Civil Rights Restoration Act, "it is beyond dispute that the City HRL now explicitly requires an independent liberal construction analysis in all circumstances, an analysis that must be targeted to understanding and fulfilling what the statute characterizes as the City HRL's uniquely broad and remedial purposes, which go beyond those of counterpart state or federal civil rights issues" (Bennett v Health Mgt. Sys., Inc., 92 AD3d 29, 34 [2011]). Under the City Human Rights Law, a discrimination claim is analyzed under both the McDonnell Douglas test, as well as the broader "mixed motive" test which inquires into whether discrimination was a motivating factor in the adverse employment decision (Melman v Montefiore Med. Center, 98 AD3d 107, 127 [2012]). A moving defendant must show "that, based on the evidence before the court and drawing all reasonable inferences in plaintiff's favor, no jury could find defendant liable under any of the evidentiary routes—McDonnell Douglas, mixed motive, direct evidence, or some combination thereof" (Bennett v Health Management Systems, Inc., 92 AD3d 29, 38—40, 45 [2011]). Under the mixed motive analysis, if the defendant sets forth non-discriminatory reasons, the plaintiff must demonstrate a triable issue of fact as to whether discrimination was one of the motivating factors for the adverse employment action (Williams v New York City Hous. Auth., 61 AD3d 62, 78 n. 27 [2009]; Melman, 98 AD3d at 127).

Even under the broader City HRL analysis, defendant has established entitlement to summary judgment. There is no evidence to show that the individuals responsible for terminating employees for sleeping on the job (i.e. management) ever displayed a discriminatory animus toward Indians or any other group, or that they were otherwise made aware of Denig's alleged remarks toward plaintiff when the decision was made to terminate plaintiff from employment. Significantly, the adverse employment action was not effectuated by Denig, who merely reported plaintiff to management. Remarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are not direct evidence of discrimination (see E.E.O.C. v Alton Packaging Corp., 901 F 2d 920, 924 [1990]). Based on the evidence adduced in this matter, there can be no finding that management's decision to terminate plaintiff was based on any motive other than enforcement of its zero tolerance policy against sleeping on the job.[FN1] [*5]

Even if this court were to accept plaintiff's argument that Denig was a "decisionmaker" under a "cat's paw" or "rubber stamp" theory,[FN2] there is no tangible evidence to show that there was a discriminatory motive behind Denig's decision to report plaintiff, who does not deny that he was caught sleeping on the job. Although Denig is alleged to have made disparaging comments about Indians and may have, on a few occasions, declined to report non-Indian individuals sleeping on the job, in the absence of proof that Indians were singled out for reporting by Denig or that there was a discernable discriminatory pattern with respect to Denig's reporting of individuals for sleeping on the job, it cannot be inferred that Denig's decision to report plaintiff was motivated by discrimination. At any rate, insofar as plaintiff admitted in writing in the report to management that he fell asleep, it cannot be argued that his termination was the result of a mere "rubber stamping" by management of Denig's observations without regard to the truth.

As a result, defendant's motion for summary judgment dismissing plaintiff's claims of discriminatory employment termination under the New York State and New York City Human Rights Law is granted.

Plaintiff's Cross-Motion to Amend Complaint

In his proposed amended complaint, plaintiff adds factual allegations that his termination was the result of unlawful retaliation and that he was subject to a hostile work environment. With respect to his claim of retaliation, plaintiff alleges that one week prior to his termination, he told Denig that if he would "report him" if he did not stop calling plaintiff discriminatory and racist names. Plaintiff alleges that he was terminated because of his complaints of discrimination. With respect to his claim that he was subjected to a hostile work environment, plaintiff alleges that Denig's harassment was sufficiently severe and pervasive so as to alter the conditions of plaintiff's employment and that defendant knew or should have known about this harassment but failed to take any remedial action.A court may allow amendment of a pleading before or after judgment to conform to the evidence (CPLR 3025 [c]). Nonetheless, a defendant whose motion is addressed to the merits retains the option of applying the motion to the amended pleadings (see Sage Realty Corp. v Proskauer Rose, 251 AD2d 35 revd on other grounds, 91 NY2d 30 [1997]; DiPasquale v Security Mut. Life Ins. Co. of NY, 293 AD2d 394 [*6][2002]). In this matter, defendant submits a supplemental reply memorandum of law in support of its motion for summary judgment, dated March 1, 2013, which addresses the merits of the proposed amendments. As a result, this court will apply the summary judgment motion to the proposed amended pleading. indicated that it was applying its summary judgment motion to the proposed amended pleading.

To establish a claim for retaliation, a claimant is required to prove that he engaged in protected activity, that his employer was aware that he engaged in such activity, that he suffered an adverse employment action based upon his activity and that there is a causal connection between the protected activity and the adverse action (see Forrest, 3 NY3d at 313; Suriel v Dominican Republic Educ. & Mentoring Project, Inc., 85 AD3d 1464, 1466 [2011]). As defendant has established that Denig possessed no power to terminate employees, and there is no proof to show that management ever received notice of plaintiff's complaints about Denig prior to plaintiff's termination, plaintiff cannot show a causal connection between his complaints to Denig and his termination.

"A hostile work environment exists where 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. Various factors, such as frequency and severity of the discrimination, whether the allegedly discriminatory actions were threatening or humiliating or a mere offensive utterance, and whether the alleged actions unreasonably interfere[] with an employee's work are to be considered in determining whether a hostile work environment exists. The allegedly abusive conduct must not only have altered the conditions of employment of the employee, who subjectively viewed the actions as abusive, but the actions must have created an objectively hostile or abusive environment—one that a reasonable person would find to be so" (Nettles v LSG Sky Chefs, 94 AD3d 726, 730 [2012][citations and internal quotation marks omitted]). "In order to hold a defendant liable under New York law for alleged pervasive harassment, a plaintiff must prove that the employer had knowledge of and acquiesced in the discriminatory conduct of its employee. Where the complainant is harassed by a low-level supervisor or a coemployee, the complainant is required to establish only that upper-level supervisors had knowledge of the conduct and ignored it; if so, the harassment will be imputed to the corporate employer and will result in imposition of direct liability" (Vitale v Rosina Food Prods. Inc., 283 AD2d 141, 143 [2001][citations and internal quotation marks omitted]).

Assuming the truth of plaintiff's allegations that Denig frequently made disparaging comments about Indians, there is no evidence to show that this behavior was reported to management or that management was otherwise aware of the alleged harassment. Further, there are no facts alleged or evidence adduced to show that Denig was relying on supervisory authority to carry out the alleged harassment. As stated by Ms. Kolacinski in her affidavit, Denig himself would be subject to discipline had if it was found that he violated defendant's policy on harassment and discrimination.

Accordingly, plaintiff's cross motion to amend is denied.

The complaint is hereby dismissed.

The foregoing constitutes the decision and order of the court.

E N T E R,

J. S. C. Footnotes

Footnote 1:Plaintiff includes as an exhibit an article from the New York Post, published on December 27, 2010, which reported that Denig was found asleep on the job but would receive only a suspension as punishment. However, this isolated example of defendant declining to terminate a white supervisor for sleeping on the job, though seemingly unfair, cannot alone lead to a finding that defendant's decision to terminate plaintiff was based on racial or ethnic discrimination.

Footnote 2:Under the "cats' paw" or "rubber-stamp" theory of discrimination, a "non-decisionmaking employee's discriminatory animus may be imputed to a neutral decisionmaker when the decisionmaker has not independently investigated allegations of misconduct" (Dwyer v. Ethan Allen Retail, Inc., 325 Fed Appx 755, 757 [11th Cir 2009]).