Opinion
No. 21696/2011E.
2012-06-13
Alvis NEWELL, Plaintiff, v. ATLANTIC EXPRESS TRANSPORTATION CORP., Amboy Bus Company, Inc., John Does 1–10, And XYZ Corp. 1–10, Defendants.
Marshall B. Bellovin, Esq., for Plaintif. Jamie S. Felsen, Esq., for Defendant.
Marshall B. Bellovin, Esq., for Plaintif. Jamie S. Felsen, Esq., for Defendant.
ALEXANDER W. HUNTER JR., J.
The motion by defendant Atlantic Express Transportation Corp., (hereinafter “Atlantic Express”) for an order pursuant to C.P.L.R. § 3211(a)(7), dismissing plaintiff's complaint against it for failure to state a cause of action, is denied.
The causes of action are for unlawful employment discrimination, harassment, and creation of a hostile work environment, resulting from plaintiff's age, race, and national origin, in violation of the Executive Law of the State of New York, New York State Human Rights Law, § 296, et seq. (“NYSHRL”) and the Administrative Code of the City of New York, New York City Human Rights Law, § 8–101, et seq. (“NYCHRL”).
Atlantic Express moves to dismiss plaintiff's complaint for failure to state a cause of action on the basis that there are no specific allegations in plaintiff's complaint supporting his claims of discrimination. Atlantic Express states that a higher level of specificity than exists in plaintiff's complaint is necessary to sustain the disparate treatment charges. According to defendant, plaintiff's claims are conclusory and speculative. Furthermore, they do not allege the type of intimidation, ridicule or remarks based on plaintiff's race, age or national origin, that are necessary to establish a hostile work environment claim. Atlantic Express repeatedly emphasizes that plaintiff's statements are based solely on “information and belief,” a standard that does not meet the requirements for a CPLR § 3211(a)(7) order. Additionally, Atlantic Express maintains that New York generally does not favor “bootstrapping” hostile work environment claims under disparate treatment claims when no additional facts are provided to support the claim. Therefore, plaintiff's complaint should be dismissed.
Plaintiff opposes the motion submitted by defendants to dismiss the claim. Plaintiff asserts that the allegations set forth in both the complaint and the opposition to defendants' motion to dismiss the verified complaint were made with sufficient particularity to prove a prima facie case of discrimination. An affidavit and affirmation were submitted by the plaintiff to further support his case. The affirmation attaches various documents discussed in the complaint. One such document, attached as Exhibit A, is a safety violation form filed by Atlantic Express on December 2, 2008, against the plaintiff. The citation states that plaintiff reported having no safety equipment on his bus. However, Atlantic Express' citation fails to specify the exact equipment missing from plaintiff's bus. Plaintiff cites this lack of specificity as evidence that the citation was given without merit. Plaintiff avers that despite a manager from Atlantic Express submitting the violation, his bus was never actually inspected and his trip card, which listed no damaged or missing equipment, is evidence that the citation was unwarranted. Furthermore, attached to the affirmation as Exhibit E is a notice for a disciplinary hearing resulting from plaintiff's failure to attend work on January 12, 2011. Said hearing was scheduled despite plaintiff having submitted a doctor's note stating that he would not be able to attend work due to illness. The doctor's excuse note is attached as Exhibit D. Plaintiff argues that these documents are evidence of discrimination given that similarly situated bus drivers did not continually face seemingly unjustified disciplinary actions. The documents submitted by plaintiff support his assertion that his claim rests on more than “information and belief,” as defendants maintains. Plaintiff contends that he sufficiently supported his causes of action, and defendant's motion should be denied.
Defendants' reply maintains that despite plaintiff's additional documentation submitted with his opposition papers, his claims remain insufficiently supported. Defendants contend that while the affidavit from plaintiff attaches as exhibits various grievances to the union based on Atlantic Express' treatment, none of the documents contain a substantive connection between defendant's treatment of plaintiff and his race, age, or national origin. Additionally, the incidents addressed in plaintiff's affidavit occurred after the complaint was filed. Regardless of whether the claims addressed in the affidavit support plaintiff's case, defendants argue that the additional documentation submitted by the plaintiff suffers from the same problems of vagueness and conclusory allegations as the original complaint.
C.P.L.R. § 3211(a)(7) states that a party may move to dismiss one or more causes of action against it on the ground that the pleading fails to state a cause of action.
In deciding a motion to dismiss pursuant to CPLR § 3211(a)(7), 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 N.Y.2d 83, 87–88 (1994). Additionally, the pleading is afforded a liberal construction. Id. at 87. Affidavits submitted by the plaintiff, remedying defects in the complaint, are considered by the court as well. Id. at 88. Conclusory allegations that are made only “upon information and belief” are insufficient to overcome a motion to dismiss. See Angel v. Bank of Tokyo–Mitsubishi, Ltd., 39 AD3d 368, 370 (1st Dept.2007).
In order for a plaintiff to prove employment discrimination, four requirements must be met. Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305 (2004). The plaintiff must be a member of the protected class; he or she must be qualified to hold the position; he or she must have been terminated from their employment or suffered another adverse employment action; and the adverse action must have occurred under circumstances giving rise to an inference of discrimination. See Id. “An adverse employment action requires a materially adverse change in the terms and conditions of employment.” Id. at 306. The plaintiff must also be able to prove that discrimination was the real reason for the adverse treatment he or she suffered. See Id. at 305. A hostile work environment can be determined only by “looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening and whether it unreasonably interferes with an employee's work performance.” ‘ Id. at 310–311 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
In the case at bar, plaintiff's complaint provides a sufficient basis for a discrimination claim. The first two requirements are easily met because the plaintiff is black and worked successfully as a bus driver for twenty-six years. In his complaint, plaintiff satisfied the requirements for an “adverse employment action” due to the materially adverse changes in the conditions of his employment. These changes resulted from the numerous, and seemingly unfounded, disciplinary actions taken against plaintiff for events outside of his control, such as unannounced changes in his bus route. The fourth requirement for a discrimination claim is that the adverse action must have occurred under circumstances giving rise to an inference of discrimination. Although plaintiff provided no concrete examples of instances where his race, national origin or age were directly implicated as a reason for his mistreatment, he did allege that defendants are hiring younger drivers and gradually attempting to constructively discharge the older drivers, or forcing them to retire or quit.
The evidence plaintiff provided, illustrating the frequency, severity and nature of his mistreatment, support his hostile work environment claim. Such mistreatment was demonstrated in December 2011, when plaintiff was assigned five different buses with technical issues, thus violating DOE requirements and potentially leading to citations by the DOE. Additionally, plaintiff was required to submit to a drug test while other drivers were not, yet defendant did not rationalize its use of the test. Furthermore, an unprovoked threat of harassment by an Atlantic Express supervisor towards the plaintiff contributed to the hostile environment as described by the court in Forrest. All of these factors, in combination, affect plaintiff's ability to adequately perform his job and, thus, support a hostile work environment claim.
Accordingly, the motion to dismiss plaintiff's complaint as against defendant Atlantic Express for failure to state a cause of action is denied.
This constitutes the decision and order of the court.