Opinion
Index No. 9686/2011
07-17-2023
Shafeeq Asad, GLEN M. MORGAN, DERRICK WRIGHT, and IVERY HILL, Plaintiffs, v. Kevin Mahoney, FIRST QUALITY MAINTENANCE, BROADWAY PARTNERS FUND MANAGER, LLC, SL GREEN REALTY CORP., ALLIANCE BUILDING SERVICES, CLASSIC SECURITY, BROADWAY REAL ESTATE SERVICE, BROADWAY REAL ESTATE SERVICES, BROADWAY 340 MADISON OPERATOR LLC, BROADWAY PARTNERS, and SL GREEN MANAGEMENT LLC, Defendants.
Attorney for Plaintiffs' Glen M. Morgan, Ivery Hill and Derrick Wright, Jack Angelou, Esq. Attorneys for Defendants First Quality Maintenance, Alliance Building Services, and Classic Security, Jason Berlin Klimpl, Esq., Elizabeth E. Schlissel, Esq., Tannenbaum Helpern Syracuse & Hirschtritt, LLP
Unpublished Opinion
Attorney for Plaintiffs' Glen M. Morgan, Ivery Hill and Derrick Wright, Jack Angelou, Esq.
Attorneys for Defendants First Quality Maintenance, Alliance Building Services, and Classic Security, Jason Berlin Klimpl, Esq., Elizabeth E. Schlissel, Esq., Tannenbaum Helpern Syracuse & Hirschtritt, LLP
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice motion of defendants First Quality Maintenance (hereinafter First Quality), Alliance Building Services (hereinafter Alliance) and Classic Security (hereinafter collectively as the FQM defendants or movants) filed on March 7, 2019, under motion sequence twenty-three, for an order pursuant to CPLR 3212 granting the movants summary judgment in their favor on the issue of liability on all claims as asserted against them by plaintiffs Glen M. Morgan, Ivery Hill and Derrick Wright (hereinafter remaining plaintiffs). This motion is opposed by the remaining plaintiffs.
• Notice of Motion
• Affirmation in Support
• Exhibits 1 to 17
• Affidavit of James Mckiernan
• Exhibits 1 to 55
• Affidavit of Fred Bishop
• Exhibits A to C
• Memorandum of Law in Support
• Affirmation in Opposition
• Memorandum of Law in Opposition
• Affidavit of Juan Ortiz
• Affidavit of Hill
• Affidavit of Morgan
• Affidavit of Wright
• Affirmation in Further Support
• Exhibits 1 to 2
• Memorandum of Law in Reply
BACKGROUND
On April 28, 2011, plaintiffs Shafeeq Asad, Glen M. Morgan, Derrick Wright, Ivery Hill, and Juan Ortiz (hereinafter the plaintiffs) commenced the instant action for damages for among other things, employment discrimination against the defendants by filing a summons and verified complaint with the Kings County Clerk's office (KCCO).
Procedural History
By notice of motion filed on October 24, 2011, defendant SL Green Realty Corp. sought to dismiss the plaintiffs' complaint.
By notice of cross-motion filed on January 11, 2012, the plaintiffs sought an order, among other things, for leave to serve a second amended complaint.
By notice of motion filed on March 12, 2012, defendant Broadway Partners Fund Manager, LLC. sought to dismiss the plaintiffs' complaint.
By order dated May 29, 2012, the Court granted the plaintiffs leave to file a second amended summons and complaint and the motions by defendants SL Green Realty and Broadway Partners Fund Manager, LLC were denied as moot.
On June 11, 2012, plaintiffs filed a second amended summons and verified complaint.
On August 24, 2012, defendants SL Green Realty Corp. and SL Green Management LLC (hereinafter the SL defendants) interposed a verified answer to the plaintiffs' complaint.
On September 13, 2012, the SL defendants filed an amended verified answer to the plaintiffs' complaint.
On September 25, 2012, the SL defendants interposed a verified answer to the crossclaims asserted by defendants Broadway Partners Fund Manager, LLC, Broadway 340 Madison Operator, LLC, Broadway Real Estate Service, and Broadway Real Estate Services, LLC.
The answer of defendants Broadway Partners Fund Manager, LLC, Broadway 340 Madison Operator, LLC, Broadway Real Estate Service, and Broadway Real Estate Services, LLC was not found in the Kings County Clerk's Minutes.
On June 17, 2013, the FQM defendants interposed a verified answer to the plaintiffs' complaint.
On February 6, 2014, a partial stipulation of discontinuance was filed with the KCCO. The stipulation, discontinued with prejudice the claims of plaintiff Juan Ortiz as asserted against all the defendants, among other things.
On December 14, 2018, a partial stipulation of discontinuance was filed with the KCCO. The stipulation discontinued the plaintiffs' (Shafeeq Asad, Glen M. Morgan, Derrick Wright, and Ivery Hill) claims as asserted against the SL defendants. The stipulation contains a footnote that the caption of the December 14, 2018, stipulation which does not list Juan Ortiz, reflects that Juan Ortiz's claims were previously discontinued.
On February 15, 2018, the plaintiffs filed a note of issue and certificate of readiness for trial.
By order dated February 13, 2019, the Court, having found good cause, extended the time for the parties to file summary judgment motions to March 7, 2019.
On March 7, 2019, the FQM defendants filed a motion pursuant to CPLR 3212 seeking the dismissal of plaintiffs Shafeeq Asad, Glen M. Morgan, Ivery Hill, and Derrick Wright claims as asserted against them.
On July 18, 2019, a partial stipulation of discontinuance was filed with the KCCO. The stipulation discontinued plaintiff Shafeeq Asad's claims as asserted against the FQM defendants.
On August 21, 2019, a partial stipulation of discontinuance was filed with the KCCO. The stipulation discontinued with prejudice the claims of plaintiffs, Shafeeq Asad, Glen M. Morgan, Derrick Wright, Ivery Hill and Juan Ortiz as asserted against defendants Broadway Partners Fund Manager, LLC, Broadway Real Estate Services, Broadway 340 Madison Operator, LLC, and Broadway Partners.
The stipulation does not explain why the caption of the August 21, 2019, stipulation includes Juan Ortiz as a plaintiff.
The Second Amended Verified Complaint
The second amended verified complaint contains one hundred and four allegations of fact in support of fourteen causes of action including (1) racial discrimination; (2) hostile work environment; (3) wrongful termination; (4) punitive damages; (5) violation of the labor law; (6) hostile work environment; (7) retaliation; (8) mixed motive; (9) religious discrimination; (10) breach of contract; (11) quantum merit; (12) unjust enrichment; (13) failure to adhere to the arbitration provision of the collective bargaining agreement; and (14) defamation.
The verified complaint and bill of particulars allege the following salient facts. The plaintiffs are alleged to have been employed by the defendants. The plaintiffs allege that they have experienced various forms of harassment based on racial and religious discrimination. Plaintiffs Shafeeq Asad, Glen M. Morgan, Derrick Wright, and Ivery Hill are African American.
Shafeeq Asad (hereinafter Asad) was employed as a foreman, from May 2006 until he was unlawfully terminated. Over the course of his employment, Asad made complaints regarding discriminatory acts by the defendants. Asad experienced religious discrimination due to his Muslim faith and head attire. Defendant Kevin Mahoney or someone under his direction is alleged to have placed a noose in Asad's office or work area. Asad alleges that a supervisor made gorilla sounds to mock him. On another occasion, a supervisor told Asad that he dressed "too ghetto."
Derrick Wright (hereinafter Wright), Glen Morgan (hereinafter Morgan) and Ivery Hill (hereinafter Hill) were assigned to cleaning jobs by the defendants.
Hill is alleged to have worked for some or all the defendants from 2006 until June 2011, when he was unlawfully terminated. Morgan is alleged to have worked for some or all the defendants from April 24, 2004, until he was wrongfully suspended in 2010 or 2011 and threatened with termination. Wright is alleged to have worked for some or all the defendants from 2005 until his wrongful termination in 2011. Juan Ortiz is alleged to have worked for some or all the defendants until he was wrongfully suspended in 2010 or 2011 and threatened with termination.
The complaint further alleges that the plaintiffs experienced various forms of harassment as follows. Some of the plaintiffs were denied overtime even though they had seniority over the employees that were awarded the overtime hours. Most of the workers that were awarded overtime were either Caucasian or non-Black/African American. The defendants made defamatory statements about some of the plaintiffs accusing some of them of theft. The defendants did not pay parking tickets and parking fees even though it was an employer expense. The defendants subjected the plaintiffs to dirty and difficult work conditions. Some of the plaintiffs were banned from working certain jobs because the defendants only wanted Caucasian or non-Black/African American employees to come into their offices or residences. FQM supervisor James Mckiernan made racial remarks about all the plaintiffs. Although the defendants were notified about instances of discrimination there was no attempt to remedy the situation. The plaintiffs experienced unequal treatment when disciplined by the defendants in comparison to their Caucasian or non-Black/African American counterparts.
Although Hall was threatened with violence by a Caucasian co-worker and reported it to his supervisors, the Caucasian co-worker was not disciplined. Rather, the supervisor told Hall to fight so he could fire him.
The plaintiffs were referred to as "Bad Apples." The plaintiffs experienced retaliation due to their complaints. The plaintiffs were shorted work hours. They experienced retaliation for making complaints. The defendants created an unsafe and hostile work environment for the plaintiffs. The plaintiffs allege that their work environment had become unsafe and hostile.
By stipulation dated January 9, 2020, the remaining plaintiffs withdrew the following causes of action: (3) wrongful termination; (4) punitive damages; (5) violation of the labor law; (8) mixed motive; (9) religious discrimination; (11) quantum meruit; (12) unjust enrichment. The remaining causes of action include racial discrimination, hostile work environment, retaliation, breach of contract, breach of the collective bargaining agreement, and defamation.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 N.Y.2d 72 [2003]).
Pursuant to CPLR 3212 (b), the party moving for summary judgment must demonstrate that "the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment" in the moving party's favor (Jacobsen v New York City Health and Hosps. Corp., 22 N.Y.3d 824, 833 [2014], citing CPLR 3212 [b]). Thus, the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fac (Alvarez, 68 N.Y.2d at 324). Furthermore, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610 [2nd Dept 1990]).
If the moving party meets this burden, the burden then shifts to the non-moving party to establish the existence of material issues of fact which require a trial of the action (Jacobsen v New York City Health and Hosps. Corp, 22 N.Y.3d 824, 833 [2014], quoting Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012]).
In the instant motion, First Quality, Alliance, and Classic Security seek summary judgment on all the remaining claims asserted by remaining plaintiffs (hereinafter the plaintiffs). Inasmuch as the plaintiffs did not oppose the dismissal of their claims against Classic Security, those claims are deemed abandoned (see Elam v Ryder Sys., Inc., 176 A.D.3d 675, 676 [2d Dept 2019], citing Pita v Roosevelt Union Free Sch. Dist., 156 A.D.3d 833, 835 [2d Dept 2017]; see also Kronick v L.P. Thebault Co., 70 A.D.3d 648, 649 [2d Dept 2010], citing Genovese v Gambino, 309 A.D.2d 832, 833 [2d Dept 2003]).
The New York State Human Rights Law & The New York City Human Rights Law
The New York State Human Rights Law, Executive Law 290 et seq. (hereinafter NYSHRL), and the New York City Human Rights Law (hereinafter NYCHRL) prohibit discrimination in employment on the basis of race (Blackman v Metro. Tr. Auth., 206 A.D.3d 602, 603-04 [2d Dept 2022]; see also Golston-Green v City of New York, 184 A.D.3d 24, 34 [2d Dept 2020]).
Notwithstanding the fact that the NYSHRL and NYCHRL laws are similarly worded, claims under the NYCHRL are to be construed separately and independently from its state counterpart (Golston-Green, 184 A.D.3d 24, 34-35, citing Local Civil Rights Restoration Act of 2005 (Local Law No. 85 [2005] of City of NY § 1). The NYCHRL requires the court to construe all its provisions broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible (Golston-Green, 184 A.D.3d 24, 34-35, citing Albunio v City of New York, 16 N.Y.3d 472, 477-478 [2011]). Furthermore, the NYCHRL includes a provision directing that exceptions and exemptions "shall be construed narrowly in order to maximize deterrence of discriminatory conduct" (Golston-Green, 184 A.D.3d 24, 34-35, citing Administrative Code of City of NY § 8-130[b]).
Despite the differing burdens of proof at trial under the NYSHRL and the NYCHRL, an employer moving for summary judgment with respect to an employee's claims under both statutes still has the burden of showing that the employee's evidence and allegations present no triable material issue of fact (Jacobsen, 22 N.Y.3d at 833, citing Ferrante v American Lung Assn., 90 N.Y.2d 623, 630 [1997] [ concluding that an employer must carry its burden on a summary judgment motion with respect to an employee's age discrimination claim under the NYSHRL, notwithstanding that the employee bears the ultimate burden at trial ]. Therefore, a motion for summary judgment seeking the dismissal of a plaintiff's claims of violations of the NYSHRL and NYCHRL requires a separate analysis under each law (Golston-Green, 184 A.D.3d 34-35).
Racial Discrimination
"To establish a prima facie case of discrimination on the basis of race under the NYSHRL, a plaintiff must demonstrate that (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified to hold the position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination" (Blackman 206 A.D.3d 603-04, citing Ellison v Chartis Claims, Inc., 178 A.D.3d 665, 667 [2nd Dept 2019]; see Forrest v Jewish Guild for the Blind, 3 N.Y.3d 295, 305, [2004]).
The plaintiffs contend that they were subject to discrimination on the basis of race by the FQM defendants. Morgan's deposition transcript states that he is an African American male and was employed by the FQM defendants as a Porter or General Maintenance Worker in April 2004. He was later promoted to the position of a Utility Man and became part of a "Route Crew" which he defined as very skilled workers who were assigned to different client buildings to do skilled labor such as shampooing carpets, cutting and shining marble, and taking care of vinyl flooring. Morgan alleges that he was subjected to adverse employment actions including a decrease in the number of overtime hours he was given in comparison to peers with less seniority; being removed from the Route Crew; and not having the benefit of the FQM defendants covering any parking tickets he obtained while driving an FQM truck. Morgan attributes these adverse actions to racial discrimination.
In Wright's deposition transcript, he identifies as an African American male who was employed by the FQM defendants. Wright worked as Shop Steward in a building located at 1515 Broadway and under the SL Green defendants' management which later transitioned to management by the FQM defendants. He later worked as Utility Worker on the Route Crew for eight years doing specialized jobs including waxing floors and shampooing carpets. Wright contends that he was subjected to adverse employment actions including a decrease in the number of overtime hours he was given in comparison to peers with less seniority; losing the privilege of driving a FQM truck; subjected to harsher penalties than his peers including suspension and later termination. Wright attributes these adverse actions to racial discrimination by the FQM defendants.
In Hill's deposition transcript, Hill identifies as an African American male who was employed by the FQM defendants as a Porter and then promoted to a "Special Service Porter". Hill describes a Special Service Porter as employees tasked with special jobs including construction cleanup and special floor services. Hill was a member of a Route Crew of ten people. Hill contends that he was subjected to adverse employment actions including removal from the Route Crew; a decrease in the number of overtime hours he was given in comparison to peers with less seniority; disproportionate response in discipline; not having the benefit of the FQM defendants covering any parking tickets he obtained while driving an FQM truck; and termination. Hill attributes these actions to racial discrimination by the FQM defendants.
To prevail on a summary judgment motion in an action alleging discrimination in violation of the NYSHRL, a defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for the challenged actions, the absence of a triable issue of fact as to whether the explanations were pretextual (Blackman, 206 A.D.3d 603-04, citing Reichman v City of New York, 179 A.D.3d 1115, 1119-20 [2d Dept 2020]; Bilitch v New York City Health & Hosps. Corp., 194 A.D.3d 999 [2nd Dept 2021]). A defendant seeking summary judgment with respect to allegations of racial discrimination must produce evidence that justifies the adverse action against the plaintiff on nondiscriminatory grounds (Durand v S. Nassau Hosp., 172 A.D.3d 1318, 1320 [2d Dept 2019], citing Bennett v Health Mgt. Sys., Inc., 92 A.D.3d 29, 39 [1st Dept 2011]).
Pursuant to the NYCHRL, unlawful discrimination must play no role in an employment decision (Lefort v Kingsbrook Jewish Med. Ctr., 203 A.D.3d 708 [2d Dept 2022], quoting Ellison, 178 A.D.3d 665, 668). To prevail on a summary judgment motion where the claims are alleging discrimination pursuant to violation of the NYCHRL, a defendant must demonstrate that there is no evidentiary route that could allow a jury to believe that discrimination played a role in their challenged actions (id.).
Here, the FQM defendants seek to dismiss the remaining plaintiffs' claims of racial discrimination in violation of the NYSHRL and the NYCHRL. The FQM defendants contend the plaintiffs cannot establish the third prong of a prima facie case of discrimination on the basis of race under the NYSHRL, because the remaining plaintiffs' have failed to demonstrate that they have suffered an adverse employment action. They, further claim that any actions taken by the FQM defendants were for legitimate, nondiscriminatory reasons.
In support of their motion, the FQM defendants annex affidavits of James McKiernan (hereinafter McKiernan), Vice President of First Quality and Fred Bishop, Operations Supervisor of First Quality as well as the deposition transcripts of the plaintiffs. The movants contend that the plaintiffs failed to demonstrate that the denial or decrease of overtime was an adverse employment action.
The McKiernan Affidavit
McKiernan's affidavit describes First Quality as a limited partnership, which is a subsidiary to Alliance, that provides building maintenance and cleaning services to clients in the New York metropolitan area, including commercial and office buildings, sports stadiums, and retail facilities. McKiernan avers that the decisions regarding hours, overtime, scheduling, and personnel of the plaintiffs were the sole responsibility of Bishop. McKiernan denies making any discriminatory remarks regarding the plaintiffs. McKiernan describes various grievances filed by the plaintiffs, which relies primarily upon the business records generated by the Service Employees International Union, Local 32BJ (hereinafter the Union) from an electronic system referred to as the Integrated Union Administration System. It is well established that records may be admitted into evidence if the recipient can establish personal knowledge of the maker's business practices and procedures or establish that the records provided by the maker were incorporated into the recipient's own records and routinely relied upon by the recipient in its own business (Bank of NY Mellon v Gordon, 171 A.D.3d 197, 209, [2d Dept 2019]).
Here, McKiernan failed to lay a proper found for the Union records as he did not aver that he had personal knowledge of the Union's practices and procedures, or that the Union records were incorporated into the FQM defendant's records (see Fed. Natl. Mtge. Assn. v Allanah, 200 A.D.3d 947 [2d Dept 2021], citing Bank of NY Mellon v Gordon, 171 A.D.3d at 209). Accordingly, those portions of McKiernan's affidavit which rely on the Union records constitute inadmissible hearsay and have no probative value (id.).
The Bishop Affidavit
Bishop's affidavit avers that he supervises the Route Crew and is familiar with the plaintiffs. Bishop describes the Route Crew as having been comprised of 26 FQM employees, which included approximately 15 African American employees, 7 Latino employees, 2 Filipino employees, and 2 Caucasian/European employees. Bishop avers that he is responsible for managing the Route Crew, distributing work assignments, determining where assistance is required and assigning the employees accordingly. Bishop avers that his reasons and methods of the scheduling of assignments and overtime were devoid of discriminatory animus. Rather, Bishop considers the type of assistance the client needed on any particular day, the amount of overtime opportunities available, the amount of overtime hours an employee accumulated, among other things.
Bishop contends that the plaintiffs were not the subject of adverse employment actions and that the decisions he made regarding overtime were not based on nondiscriminatory grounds. Regarding overtime, Bishop avers that he applies four factors: (1) the employee's possession of particular skills and certifications; (2) whether the employee completed a full 40-hour work to qualify for overtime; (3) employees that are consistently willing and do not refuse to assist when First Quality requires additional assistance; and (4) satisfactory job performance.
Bishop alleges that the plaintiffs were excluded from overtime shifts that required certified pressure washers as they were not certified. Bishop also alleges that the plaintiffs consistently refused overtime opportunities. Bishop claims that Hill and Wright's work performance was unsatisfactory. Bishop further states that the plaintiffs were the subject of investigations for theft which result in legitimate employment actions such as suspension and/or termination. Bishop denies making any discriminatory statements nor any statements inferring that McKiernan made discriminatory remarks.
Pursuant the NYSHRL, an adverse employment action, requires a materially adverse change in the terms and conditions of employment (Lefort, 203 A.D.3d at 708, citing Forrest, 3 N.Y.3d at 306). This has been characterized as a change must be more disruptive than a mere inconvenience or an alteration of job responsibilities, such as a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, or significantly diminished material responsibilities (Golston-Green, 184 A.D.3d at 37, quoting Forrest, 3 N.Y.3d at 306 [quotations marks omitted).
The FQM defendants rely on the plaintiffs' deposition transcripts to demonstrate that any changes in the plaintiffs' employment experience were mere alterations of their job responsibilities. Contrarily, for example, Morgan testified that he was suspended for two weeks from the Route Crew regarding an incident in which he drank a bottle of water that he had permission to take from a client's fridge. He was later given an ultimatum to choose the loss of his employment or his removal from the Route Crew. He chose to remain employed, was removed from the Route Crew and then transferred to a certain building with a less distinguished title and did not receive overtime. McKiernan's affidavit confirms that overtime was not available to the employees who worked in that building. The plaintiffs also testified that they received less overtime than other employees who had less seniority.
The Courts have found that the preclusion from seeking overtime is an adverse action as it adversely affects an employee's pay (see Bilitch, 194 A.D.3d at 1000). However, the analysis under NYSHRL "is not whether the decision was correct or wise, but whether the reason for the decision was a pretext for discrimination" (Bilitch 194 A.D.3d at 1000, citing Grella v St. Francis Hosp., 149 A.D.3d 1046, 1048, [2d Dept 2017]). Summary judgment dismissing a claim under the NYCHRL should be granted only if no jury could find the defendant liable under any of the evidentiary route including McDonnell Douglas standard, mixed motive, direct evidence, or some combination thereof (Bilitch, 194 A.D.3d at 1002, citing Sanderson-Burgess v. City of New York, 173 A.D.3d 1233,1235 [2d Dept 2017], quoting Persaud v Walgreens Co., 161 A.D.3d at 1020, [2d Dept 2018]).
In the case at bar, the FQM defendants' motion papers revealed issues of fact and credibility as to the cause of action for racial discrimination that cannot be resolved on a motion for summary judgment (see Schultheis v Arcate, 216 A.D.3d 1018, 1019 [2d Dept 2023]; Bilitch 194 A.D.3d at 1002, citing Sanderson-Burgess v City of New York, 173 A.D.3d at 1235). Pursuant to NYSHRL, the Court cannot conclude as a matter of law that the plaintiffs did not experience an adverse change in the terms and conditions of their employment (see id.). Similarly, under the broad remedial standards of the NYCHRL, the FQM defendants have also failed to eliminate any triable issues of fact as to whether the plaintiffs were subject to "unfavorable changes or treated less well" on the basis of their race (see Golston-Green,184 A.D.3d at 37 ). Based on the foregoing the FQM defendants, have failed to make a prima facie showing regarding the absence of triable issues.
Hostile Work Environment
A hostile environment claim involves repeated conduct, not discrete acts such as termination, failure to promote, denial of transfer, or refusal to hire (Blackman, 206 A.D.3d at 605, citing National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, [2002]). A plaintiff claiming a hostile work environment animated by discrimination in violation of the NYSHRL must show that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the plaintiff's employment and create an abusive working environment (Bilitch, 194 A.D.3d at 1003, citing Forrest, 3 N.Y.3d at 310). To determine whether a hostile work environment exists, a court must consider all the circumstances, including the frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interfered with the plaintiff's work performance (id.).
Under the NYCHRL, a plaintiff claiming a hostile work environment need only demonstrate that he or she was treated "less well than other employees" because of the relevant characteristic (Reichman, 179 A.D.3d at 1118, citing Nelson v HSBC Bank USA, 87 A.D.3d 995, 999, [2d Dept 2011]). The conduct alleged must, however, exceed what a reasonable victim of discrimination would consider petty slights and trivial inconveniences (Williams v New York City Hous. Auth., 61 A.D.3d 62, 80 [2d Dept 2009]), and mere personality conflicts will not suffice to establish a hostile work environment (Forrest, 3 N.Y.3d at 309). However, since the law does not operate as a general civility code, there is "an affirmative defense whereby defendants can still avoid liability if they prove that the conduct complained of consists of nothing more than what a reasonable victim of discrimination would consider petty slights and trivial inconveniences" (Ellison, 178 A.D.3d at 669, citing Nelson, 87 A.D.3d at 999).
Where the alleged discriminatory conduct in question represents a borderline situation, the determination should be left to the trier of fact (Golston-Green, 184 A.D.3d at 43, citing Williams, 61 A.D.3d at 80; Gallagher v Delaney, 139 F.3d 338, 342 [2d Cir 1988]).
Here, the FQM defendants have made a prima facie showing that the conduct alleged by the plaintiffs were discrete acts that were not frequent in nature so as to create a hostile work environment. Pursuant to the NYSHRL, the plaintiffs failed to raise a triable issue of fact based upon the Court's consideration of the totality of the circumstances (see Bilitch, 194 A.D.3d at 1003). However, as the NYCHRL offers broader protection to victims of discrimination, the plaintiffs have raised a triable regarding the discriminatory conduct. Thus, creating "a borderline situation" that must be left to the trier of fact to determine (see Golston-Green, 184 A.D.3d at 43, citing Williams, 61 A.D.3d at 80).
Retaliation
A plaintiff alleging retaliation in violation of the NYSHRL must show that (1) he or she engaged in a protected activity by opposing conduct prohibited thereunder; (2) the defendant was aware of that activity; (3) he or she suffered an adverse action based upon his or her activity; and (4) there was a causal connection between the protected activity and the adverse action (Bilitch 194 A.D.3d at 1003, citing Keceli v Yonkers Racing Corp., 155 A.D.3d 1014, 1016 [2d Dept 2017]). A protected activity is opposing or complaining about unlawful discrimination (Miller v Natl. Prop. Mgt. Assoc., Inc., 191 A.D.3d 1341 [4th Dept 2021]). In evaluating a claim of retaliation, the nature of the adverse employment action must be something that might have dissuaded a reasonable worker from making or supporting a charge of discrimination (Keceli, 155 A.D.3d at 1016). The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm (Burlington N. & S.F.R. Co. v White, 548 U.S. 53 [2006]).
The NYCHRL offers retaliation victims, like discrimination victims, broader protection than its NYSHRL counterpart (Reichman, 179 A.D.3d at 1119; Brightman v. Prison Health Serv., Inc., 108 A.D.3d 739 [2d Dept 2013]). To evince an unlawful retaliation claim under the NYCHRL, a plaintiff must show that (1) he or she engaged in a protected activity as that term is defined under the NYCHRL, (2) his or her employer was aware that he or she participated in such activity, (3) his or her employer engaged in conduct which was reasonably likely to deter a person from engaging in that protected activity, and (4) there is a causal connection between the protected activity and the alleged retaliatory conduct (Sanderson-Burgess, 173 A.D.3d at 1235-1236, quoting Brightman, 108 A.D.3d at 740).
Under either the NYSHRL or the NYCHRL, a defendant seeking summary judgment must demonstrate that the plaintiff cannot make out a prima facie claim of retaliation or having offered legitimate, nonretaliatory reasons for the challenged actions, that there exists no triable issue of fact as to whether the defendant's explanations were pretextual" (Reichman v City of New York, 179 A.D.3d 1115, 1119-20 [2d Dept 2020], citing Delrio v City of New York, 91 A.D.3d 900, 901 [2012]).
Here, the FQM defendants contend that the plaintiffs cannot establish the fourth prong of an unlawful retaliation claim drawing a causal connection to a protected activity. The plaintiffs have testified that at various times Bishop and other supervisors have made comments about the frequent grievances they had filed regarding the issue of overtime, among other things. However, the testimony indicates that the filing of a grievance which is a protected activity resulted in positive action, even if for a short time. In relation to the loss of overtime, the plaintiffs have contended that upon filing a grievance they would receive overtime for a short time, but it would later stop. Accordingly, the FQM defendants have demonstrated, prima facie, that the plaintiffs cannot support a claim of unlawful retaliation. The plaintiffs have failed to raise a triable issue.
Breach of Contract & Breach of the Collective Bargaining Agreement
The FQM defendants seek dismissal of the plaintiffs' claims for breach of contract and breach of the collective bargaining agreement.
"The essential elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" (Avery v WJM Dev. Corp., 216 A.D.3d 887, 888-89 [2d Dept 2023], quoting R. Vig Props., LLC v Rahimzada, 213 A.D.3d 871, 873 [2d Dept 2023]).
Here, the plaintiffs' claims sounding in breach of contract are extremely vague. There is no dispute, however, that the only contract at issue is the collective bargaining agreement. Since the cause of action sounding in breach of contract arises from the same operative facts underlying the cause of action for breach of the collective bargaining agreement and does not allege distinct and different damages, it is therefore duplicative (see Urias v Daniel P. Buttafuoco & Assoc., PLLC, 173 A.D.3d 1244, 1245 [2d Dept 2019], citing Pacella v Town of Newburgh Volunteer Ambulance Corps. Inc., 164 A.D.3d 809, 814 [2d Dept 2018]; Balan v Rooney, 152 A.D.3d 733, 734 [2d Dept 2014]). The cause of action for breach of contract is dismissed.
The plaintiffs allege that the FQM defendants have violated the collective bargain agreement by failing to participate in mediation and arbitration proceedings.
Generally, where an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract (Lundgren v Kaufman Astoria Studios, Inc., 261 A.D.2d 513, 514 [2d Dept 1999], citing Matter of Board of Educ., Commack Union Free School Dist. v Ambach, 70 N.Y.2d, 501, 508 [1987]). Under such circumstances an employee will generally lack standing to pursue such cause of action (id.) However, if a provision of the contract allows for such action or the employee alleges that the union failed to represent the employee fairly, an employee may be found to have standing to pursue a claim pursuant to a collective bargaining agreement (Tomlinson v. Board of Educ. of Lakeland Cent. School Dist. of Shrub Oak, 223 A.D.2d 636, 856 [2d Dept 1996]; Clark v County of Cayuga, 212 A.D.2d 963, 963 [4th Dept 1995]).
In the instant motion, the movants contend that neither First Quality nor the plaintiffs are a proper party to the collective bargaining agreement and therefore the plaintiffs lack standing to assert this cause of action. In support of their contentions, FQM defendants rely on the affidavit of McKeirnan and annex two collective bargaining agreements they denominate as the 2008 CBA and the 2012 CBA. Pursuant to the CBAs the parties are listed as Service Employees International Union, Local 32BJ and The Realty Advisory Board on Labor Relations, Inc., which is described as a multi-employer labor association that represents the FQM defendants. The CBAs establish a grievance procedure for all arbitrable issues, which outlines the steps an employee must take to address grievances through the Union. The FQM defendants have established that the plaintiffs lack standing to assert a cause of action for breach of the collective bargaining agreement (id). In opposition, the plaintiffs failed to raise a triable issue of fact by pointing to a provision of the CBAs that allows for such cause of action. Furthermore, the complaint does not allege, and the plaintiffs' have made no showing that the Union failed to represent them fairly (see Clark, 212 A.D.2d at 963).
Defamation
CPLR 3016 sets forth those actions which require particularity in pleadings. Pursuant to CPLR 3016 (a), the complaint must set forth the particular words allegedly constituting defamation, and it must also allege the time, place, and manner of the false statement and specify to whom it was made (Tsatskin v Kordonsky, 189 A.D.3d 1296, 1299 [2d Dept 2020], citing Dillon v City of New York, 261 A.D.2d 34,38, [1st Dept 1999]). Compliance with CPLR 3016 (a) is strictly enforced (Lemieux, 135 A.D.3d at 714 quoting Horbul v Mercury Ins. Group, 64 A.D.3d 682 [2nd Dept 2009]). Consequently, a cause of action sounding in defamation that fails to comply with these special pleading requirements must be dismissed (see CSI Group LLP v Harper, 153 A.D.3d 1314 [2d Dept 2017]).
Here, the plaintiffs' cause of action for defamation fails to comply with the particularity required by CPLR 3016 (a). It does not specify the time, place, and manner of the false statements and specify to whom they were made (see Tsatskin, 189 A.D.3d at 1299). Therefore, the FQM defendants' have a made a prima facie showing that the defamation cause of action should be dismissed. (see New York Horse Rescue Corp. v Suffolk County Socy. for Prevention of Cruelty to Animals, 164 A.D.3d 909, 910-11 [2d Dept 2018]).
CONCLUSION
The branch of the motion by defendants First Quality Maintenance, Alliance Building Services and Classic Security seeking summary judgment in their favor on the issue of liability and dismissal of the claims asserted by plaintiffs Glen M. Morgan, Ivery Hill and Derrick Wright as against Classic Security is granted.
The branch of the motion by defendants First Quality Maintenance, Alliance Building Services and Classic Security seeking summary judgment in their favor on the issue of liability and dismissal of the claims asserted by plaintiffs Glen M. Morgan, Ivery Hill and Derrick Wright for racial discrimination is denied.
The branch of the motion by defendants First Quality Maintenance, Alliance Building Services and Classic Security seeking summary judgment in their favor on the issue of liability and dismissal of the claims asserted by plaintiffs Glen M. Morgan, Ivery Hill and Derrick Wright pursuant to the New York State Human Rights Law of a hostile work environment is granted.
The branch of the motion by defendants First Quality Maintenance, Alliance Building Services and Classic Security seeking summary judgment in their favor on the issue of liability and dismissal of the claims asserted by plaintiffs Glen M. Morgan, Ivery Hill and Derrick Wright pursuant to the New York City Human Rights Law of a hostile work environment is denied.
The branch of the motion by defendants First Quality Maintenance, Alliance Building Services and Classic Security seeking summary judgment in their favor on the issue of liability and dismissal of the claims asserted by on the plaintiffs Glen M. Morgan, Ivery Hill and Derrick Wright on their cause of action for retaliation is granted.
The branch of the motion by defendants First Quality Maintenance, Alliance Building Services and Classic Security seeking summary judgment in their favor on the issue of liability and dismissal of the claims asserted by plaintiffs Glen M. Morgan, Ivery Hill and Derrick Wright on their cause of action for breach of contract is granted.
The branch of the motion by defendants First Quality Maintenance, Alliance Building Services and Classic Security seeking summary judgment in their favor on the issue of liability and dismissal of the claims asserted by plaintiffs Glen M. Morgan, Ivery Hill and Derrick Wright for failure to adhere to the arbitration provision of the collective bargaining agreement is granted.
The branch of the motion by defendants First Quality Maintenance, Alliance Building Services and Classic Security seeking summary judgment in their favor on the issue of liability and dismissal of the claims asserted by plaintiffs Glen M. Morgan, Ivery Hill and Derrick Wright for defamation is granted.
The foregoing constitutes the decision and order of the Court.