Opinion
Index No. 156523/2021 Motion Seq. No. 001
01-11-2024
STEVEN ANTHONY SANCHEZ, Plaintiff, v. HERSHA HOSPITALITY TRUST, HERSHA HOSPITALITY MANAGEMENT, L.P., DEMETRIUS HODGE Defendant.
Unpublished Opinion
PART 46M
MOTION DATE 01/24/2023
DECISION + ORDER ON MOTION
HON. RICHARD LATIN, JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 9,10, 11,12,13, 14, 15, 16, 17, 18, 19, 20,21,22,23, 24, 25, 26 were read on this motion to/for DISMISS.
Upon the foregoing documents, it is ordered that defendants' motion to dismiss plaintiff s complaint pursuant to CPLR 3211 is determined as follows:
Factual Background
Plaintiff Steven Anthony Sanchez has a conviction history (NY St Cts Elec Filing [NYSCEF] Doc No. 2, Complaint, ¶ 13). In December 2021, Plaintiff applied for a bell person position at the Moxy NYC Downtown Hotel ("Moxy") (id., ¶ 14). Plaintiff was interviewed and hired. After plaintiff was hired, he was required to consent to a background check (id., ¶ 16). A week into this employment, plaintiff arrived at work and defendant Hodge, the general manager, asked plaintiff to speak with him, however, defendant Demetrius Hodge (Hodge) was preoccupied and told plaintiff that they would speak the following day (id., ¶ 18). Plaintiff arrived to work the next day and discovered that another bell person had been assigned to his duties. Plaintiff alleges that defendant Hodge told him, "Sorry, we found out that you have a criminal background, so we're going to let you go" (id., ¶ 19). Around the same time, plaintiff received from defendants an adverse action notice, which stated, "we find it necessary to rescind our previous offer of employment" and that "this decision was based in whole or part, on the information provided to us in a consumer report or investigative consumer report" (id., ¶ 20). Plaintiff alleges that defendants did not provide him with a more detailed explanation of why his conviction disqualified him from serving as a bell person at the Moxy (id., ¶ 21). Plaintiff further alleges that defendants did not provide him with a copy of the Article 23-A, detailing the circumstances under which an employer may reject an applicant on the basis of a conviction history (id., ¶ 22).
Article 23-A was enacted in attempt to eliminate effect of bias against ex-offenders which prevented them from obtaining employment, and sought to remove this obstacle to employment by imposing obligation on employers and public agencies to deal equitably with ex-offenders while also protecting society's interest in assuring performance by reliable and trustworthy persons (Bonacorsa v Van Lindt. 71 N.Y.2d 605, 528 [1998]).
On June 29, 2022, plaintiff commenced this employment discrimination action. Plaintiff s first cause of action alleges violation under the New York City Human Rights Law, New York City Administrative Code § 8-107 (NYCHRL). Plaintiffs second cause of action alleges violation under the Fair Credit Reporting Act, General Business Law § 380-g (d) (FCRA). Additionally, plaintiff alleges a class action pursuant to CPLR 901 and 902 under the NYCHRL and FCRA classes, which include individuals with criminal records, who applied for employment at any New York City hotel owned or operated by the defendants and were denied employment or terminated based on their background reports. Defendants now move to dismiss plaintiffs complaint pursuant to CPLR 3211 (a) (7). Plaintiff opposed. Defendants submitted a reply.
The Parties' Contentions
Defendants assert that the complaint fails to state a cause of action under the NYCHRL for the following reasons: (i) defendants obtained a criminal background check after plaintiffs conditional offer of employment in compliance with the requirements of NYCHRL (NYSCEF Doc No. 10, Memorandum of Michael F. Fleming, Esq. (memo), 10); (ii) defendants were not required to conduct an Article 23-A analysis (Fair Chance analysis) because defendants had a legitimate, nondiscriminatory reason for terminating plaintiff, i.e. because he misrepresented his criminal conviction on his background application (id., 13); (iii) plaintiffs termination was proper because his criminal history falls within the exception to the NYCHRL (id., 14); and (iv) defendant was not required to give reasonable notice because plaintiff was terminated for his misrepresentation, and even if they were required to do so, plaintiff had four days to respond to the pre-adverse notice and had a personal interview with defendant Hodge before his termination to raise any issue (id., at 16). Plaintiff only alleged a conclusory allegation of harm suffered which lacks a causal connection to the NYCHRL violations (id., at 17). Second, defendants argue that plaintiff lacks standing t]o assert a FCRA claim because plaintiff only alleged that he was not given a copy of Article 23-A when he received his consumer report and did not articulate any harm from the procedural violation (id., 17-18). Third, defendants allege that because there is no certifiable class action pursuant to CPLR 901 (a), therefore, plaintiff s class allegations should be stricken (id., 18). Specifically, plaintiff has made conclusory allegations, and the documentary evidence shows that there is neither numerosity, commonality or typicality as a matter of law (id.). Lastly, defendants argue that the action should be dismissed against defendants Hodge and Hersha Hospitality Trust (HHT) because the NYCHRL only applies to an employer (id., 20). Defendants assert that defendant Hersha Hospitality Management, L.P. (HHMLP) was the only employer, and Hodge was only a corporate employee and HHT is not involved in the hiring and firing of employees of HHMLP (id, 21).
With their moving papers, defendants submit a declaration of defendant Hodge. According to defendant Hodge, on December 31, 2021, plaintiff applied for a job as a bellhop with the Moxy (NYSCEF Doc No. 12, Declaration of Demetrious Hodge (Hodge declaration), at 5). He received a conditional offer of employment on January 3, 2022, to begin working on January 4, 2022 (id., ¶ 4). There is no dispute that plaintiff received a conditional offer before the background check (NYSCEF Doc No. 22, Memorandum in Opposition of C.K. Lee, Esq. (opp memo), at 1). After accepting the offer, on the same day at 12:01 pm, plaintiff completed a request for standard background information, which included a question regarding plaintiffs criminal history (NYSCEF Doc No. 15). Plaintiff answered "no" when asked as a part of his application whether he had any past criminal convictions (Hodge declaration, ¶¶ 5-6). Plaintiff worked at the Moxy from January 4, 2022, to January 14, 2022 (id., ¶ 4). He was terminated on January 14, 2022 (id., ¶ 11). On January 10, 2022, defendants received a consumer report indicating plaintiff has a criminal history; he was paroled from prison in 2015 after serving 3 years on a conviction for first-degree robbery, and he was paroled from prison in 2017 after serving 3 years on a conviction for second-degree criminal possession of a weapon (NYSCEF Doc No. 16, at 7-8, Pre-Adverse Action Letter dated January 10, 2022). Defendants provided plaintiff with a pre-adverse action letter dated January 10, 2022, and the consumer report (Hodge declaration, ¶ 8). The Hodge declaration claims that on January 12, 2022, defendants made the decision to terminate plaintiff based on his false statement regarding his criminal history and that plaintiff was provided an adverse action notice dated January 12, 2022, informing him of his termination (id., ¶ 9).
In opposition, plaintiff argues that defendants' motion should be denied. First, his complaint sufficiently pleads a claim for violation of the NYCHRL and the FCRA as defendants failed to comply with Article 23-A by not providing plaintiff with a written copy of the analysis explaining their reasons for terminating plaintiff, and a reasonable time to explain himself prior to taking an adverse action (opp memo, at 3). Defendants admit that Hodge met with plaintiff after the date of the adverse action letter (id.). Second, plaintiff only must plead a prima facie case of discrimination at the motion to dismiss stage, and defendants' nondiscriminatory rationale for an adverse employment action may be considered only on a motion for summary judgment, and not on a motion to dismiss (id., at 8). Third, plaintiff has standing to bring claims under the NYCHRL and the FCRA (id., at 11). Fourth, it is premature to dismiss plaintiff s class allegations on a motion to dismiss, and defendants' affidavits are not documentary evidence within the meaning of CPLR 3211 (id., at 15). Lastly, plaintiff has adequately alleged that HHT and Hodge are properly named defendants as defendant HHT signed its name on both the adverse action and pre-adverse action letters sent to plaintiff, and defendant Hodge was involved in the process leading to plaintiff s termination (id., at 16-17).
In reply, defendants assert that their motion should be granted because the documentary evidence negates the allegations against them (NYSCEF Doc No. 25, Reply Memorandum of Michael F. Fleming, Esq. (reply memo), at 3). They further argue that because plaintiff was terminated for lying on his background authorization and not because of his criminal record, defendants were not required to do an Article 23-A analysis (id.). Defendants contend that plaintiff as a current employee was only entitled to reasonable notice (id., at 4). The notice requirements pursuant to the NYSHRL and NYCHRL do not apply as he was terminated because of his misrepresentation (id.). Plaintiff only alleged a bare allegation that he has a criminal history and was not hired which is insufficient to plead a discrimination claim under NYCHRL (id., at 6). As to the class allegations, based on defendants' documentary evidence, plaintiff is not a member of the class as he was terminated for his misrepresentation and not because of his criminal background (id., at 9). Lastly, pursuant to Administrative Code § 8-107 (6), an individual employee may be held liable for aiding and abetting discriminatory conduct. Defendants argue that one cannot aid and abet one's own alleged discriminatory act (id., at 10). Since plaintiff is alleging that both defendants HHT and Hodges's actions give rise to a discrimination claim, neither can be held liable for aiding and abetting (id.).
Discussion I. Defendants' Motion to Dismiss for Failure to State a Cause of Action
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the pleading is afforded a liberal construction and the court must accept as true the facts alleged in the complaint, accord the pleading the benefit of every reasonable inference, and only determine whether the facts, as alleged, fit within any cognizable legal theory (see Sokoloff v Harriman Estates Dev. Corp., 96 N.Y.2d 409, 414 [2001]). In assessing the sufficiency of the complaint, this court must also consider the allegations made in both the complaint and the accompanying affidavit, submitted in opposition to the motion, as true and resolve all inferences which reasonably flow therefrom, in favor of the plaintiff (see Joel v Weber, 166 A.D.2d 130, 135-136 [1st Dept 1991] [internal quotation marks and citations omitted]). However, vague and conclusory allegations cannot survive a motion to dismiss (see Kaplan v Conway &Conway, 173 A.D.3d 452, 452-453 [1st Dept 2019] [internal quotation marks and citations omitted]).
"Where evidentiary material is submitted and considered on a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), and the motion is not converted into one for summary judgment, the question becomes whether the plaintiff has a cause of action, not whether the plaintiff has stated one, and unless it has been shown that a material fact as claimed by the plaintiff to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it, dismissal should not eventuate" (Rabos v R&R Bagels &Bakery, Inc., 100 A.D.3d 849, 851-852 [2d Dept 2012] [citations omitted])."Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" (Cortland St. Recovery Corp, v Bonderman, 31 N.Y.3d 30, 38 [2018] [citation omitted]). "[U]nlike on a motion for summary judgment where the court searches the record and assesses the sufficiency of the parties' evidence, on a motion to dismiss the court merely examines the adequacy of the pleadings" (id.). "[W]hether the pleading will later survive a motion for summary judgment, or whether the party will ultimately prevail on the claims, is not relevant on a pre-discovery motion to dismiss" (Oluwo v Sutton, 206 A.D.3d 750, 752 [2d Dept 2022] [internal quotation marks and citations omitted]).
A. Plaintiff Has Stated a Cause of Action of Employment Discrimination Under NYCHRL
"[A]ll provisions of the City Human Rights law should be construed broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonable possible" (Suri v Grey Global Group, Inc., 164A.D.3d 108, 113 [1st Dept 2018], appeal dismissed 32 WL3& 1138 [2019], quoting Albunio v City of New York, 16 N.Y.3d 472, 477-478 [2011] [internal quotation marks omitted], "Under the NYCHRL, the plaintiff must establish that she or he was subject to an unfavorable employment change or treated less well than other employees on the basis of a protected characteristic" (Silvers v Jamaica Hosp., 218 A.D.3d 817, 819 [2d Dept 2023], quoting Ayers v Bloomberg, L.P., 203 A.D.3d 872, 874 [2d Dept 2022]; see Golston-Green v City of N.Y., 184 A.D.3d 24, 38 [2d Dept 2020]; see also Askin v Department of Educ. of City of N.Y., 110 A.D.3d 621, 621-622 [1st Dept 2013]). "Inference of discrimination is a flexible standard that can be satisfied differently in differing factual scenarios" (Sethi vNarod, 12 F.Supp.3d 505, 536 [ED NY 2014] [internal quotation marks and citations omitted]).
Plaintiff has sufficiently pled a prima facie case that he was terminated by defendants because of his criminal conviction history; by showing that individuals with a conviction history is a protected class pursuant to NYCHRL; that he was qualified for his position as he received a conditional offer; and that he was terminated four days after defendants received the background search results which indicated plaintiff has a conviction history, giving rise to an inference of discrimination (see Vig v New York Hairspray Co., L.P., 67 A.D.3d 140, 144-145 [1st Dept 2009], Iv denied 19 N.Y.3d 807 [2012] ["a plaintiff alleging employment discrimination need not plead specific facts establishing a prima facie case of discrimination but need only give fair notice of the nature of the claim and its grounds"] [internal quotation marks and citations omitted]). Plaintiffs complaint contains factual allegations showing that plaintiffs employment was terminated under circumstances giving rise to an inference of discrimination (see Brown v City of New York, 188 A.D.3d 518, 518 [1st Dept 2020] [citations omitted]). "To overcome a motion to dismiss, a plaintiff need only give plausible support to a minimal inference of discriminatory motivation" (Stinnett v Delta Air Lines, Inc., 2019 WL 1493224, *6, 2019 U.S. Dist LEXIS 58145, *18 [EDNY 2019], aff'd 803 Fed.Appx 505 [2d Cir 2020] [internal quotation marks and citation omitted]). An inference of discrimination can be shown by an allegation that a decision maker made a remark reflecting discriminatory intent (Brown, 188 A.D.3d at 519). In this instance, plaintiff has alleged an inference of discrimination by alleging that defendant Hodge told him, "Sorry, we found out that you have a criminal background, so we're going to let you go" (Complaint, ¶ 19). Plaintiffs complaint "contains . . . allegations. . . comments or references to plaintiffs [criminal background]. made by an employee of defendants" (see Whitfield-Ortiz v Dept. of Educ. of the City of N.Y., 116 A.D.3d 580, 581 [1st Dept 2014]).
Here, accepting the facts as alleged in the complaint as true, and according plaintiff the benefit of every possible favorable inference, the complaint sufficiently alleges circumstances which give rise to an inference of . . . discrimination and adequately states a cause of action pursuant to the NYCHRL (see Silvers, 218 A.D.3d at 819; see also Oluwo, 206 A.D.3d at 752).
B. Defendant's Alleged Nondiscriminatory Reason for Failing to Hire Plaintiff Cannot be Considered on a Motion to Dismiss
Defendants argue that they have a legitimate, nondiscriminatory reason for terminating plaintiff: he lied on his employment application. They further argue that a nondiscriminatory reason for an adverse employment action can undermine an employment discrimination claim and that a prospective employee's misstatement of a material fact on an employment application is generally considered a legitimate reason for taking an adverse employment action (Kravit v Delta Air Lines, Inc., 1992 WL 390236, *3, 1992 U.S. Dist LEXIS 19087, *8 [ED NY 1992]). However, defendants' alleged legitimate reason for the adverse employment action cannot be considered on a motion to dismiss. "[A]ny inquiry into any non-discriminatory reasons for a defendant's conduct is reserved for summary judgment or trial" (Levy v Legal Aid Socy., 408 F.Supp.3d 209, 216 [ED NY 2019]). Here, defendants' rebuttal arguments to plaintiffs prima facie case are "misplaced at this early procedural juncture" (see Petit v Department of Educ. of the City of N.Y., 177 A.D.3d 402, 404 [1st Dept 2019]; see also McDonnell Douglas Corp, v Green, 411 U.S. 792 [1973]; Bennett v Health Mgt. Sys., Inc., 92 A.D.3d 29, 35 [1st Dept 2011], Iv denied 18 N.Y.3d 811 [2012]). Accordingly, defendants' potential legitimate, non-discriminatory reason shall not be considered at this stage in the proceedings.
II. Plaintiff Adequately Alleged that He Has Standing as to His Procedural Claims
"The New York Constitution contains no case or controversy requirement; hence, federal constitutional standing doctrine is of little or no relevance" (US Bank N.A v Nelson, 36 N.Y.3d 998, 1002-1003 [2020] [Wilson, J, concurring]). "In contrast, prudential standing is not derived from Article III and 'not exhaustively' defined" (id. at 1003). "[The Court of Appeals] has adopted the prudential requirement that a party must show that the in-fact injury of which it complains ... falls within the zone of interests, or concerns, sought to be promoted or protected by the statutory provision under which the agency has acted" (id., quoting Society of Plastics Indus., Inc. v County of Suffolk, 77 N.Y.2d 761, 773 [1991] [internal quotation marks omitted]).
Plaintiff alleges that defendants violated the following FCRA procedural requirements in that they: (1) failed to provide plaintiff with a copy of defendants' analysis of the Article 23-A factors and an opportunity to respond in violation of the NYCHRL, and (2) relied on a consumer report revealing plaintiffs criminal background without first providing him with a copy of his rights under Article 23-A (Complaint, ¶¶ 37, 58). Plaintiff has adequately alleged he was denied the opportunity to participate in a fully complaint Article 23-A process. Accepting the allegations as true, plaintiff has sufficiently alleged an injury that falls within the "zone of interests" meant to be promoted and protected by the NYCHRL and the FCRA.
III. Plaintiff States Claims Against Hodge and HHT
"An individual may be held liable under the [NYCHRL] for aiding and abetting discriminatory conduct" (D'Amico v Commodities Exch., 235 A.D.2d 313, 315 [1st Dept 1997], The NYCHRL extends liability and "[i]ncludes fellow employees under the tent of liability, but only where they act with or on behalf of the employer in hiring, firing, paying, or in administering the terms, conditions or privileges of employment in other words, in some agency or supervisory capacity" (Priore v New York Yankees, 307 A.D.2d 67, 74 [1st Dept 2003], Iv denied 1 N.Y.3d 504 [2003] [internal quotation marks omitted]). Here, the complaint alleges that defendant Hodge was the general manager of the Moxy, and that he informed plaintiff he was being terminated because of his conviction history (Complaint, ¶¶ 18, 19, 21). In fact, the Hodge declaration confirms that he was the individual who hired and terminated plaintiff, therefore, he acted in "supervisory capacity" (Priore, 307 A.D.2d at 74). Accepting these allegations as true, plaintiff alleged facts sufficient to state a cause of action against defendant Hodge.
As to the allegations against defendant HHT, "by alleging that the owner-employer engaged in acts of unlawful discrimination, plaintiff unquestionably stated a cause of action against the owner-employer" (see Murphy v ERA United Realty, 251 A.D.2d 469, 472 [2d Dept 1998] [citation omitted]). Plaintiff alleged in his complaint that HHT participated in the discriminatory practice by sending the pre-adverse action notice to plaintiff. Plaintiff adequately alleges that participated in the discriminatory conduct, since it signed the pre-adverse letter (see NYCSEF Doc No. 22 at 16). Defendants' contention that HHT is not plaintiffs employer is premature at this stage and requires discovery.
IV. Dismissal of Class Action
As to plaintiffs class action, "[i]t will generally be premature to dismiss class action allegations before an answer is served or pre-certification discovery has been taken" (Griffin v Gregory's Coffee Mgt. LLC, 191 A.D.3d 600, 600 [1st Dept 2021], quoting Downing v First Lenox Terrace Assoc., 107 A.D.3d 86, 91 [1st Dept 2013], affd 24 N.Y.3d 382 [2014]). While nothing in the CPLR bars a class claim from being dismissed, "even at the pre-answer stage, for failure to state a cause of action" (Maddicks v Big City Props., LLC, 34 N.Y.3d 116, 123 [2019]), defendants have not conclusively demonstrated that there is no basis for class action relief as a matter of law (Griffin, 191 A.D.3d at 601). Additionally, defendants contention that the class action allegations should be dismissed on the ground plaintiff failed to demonstrate the prerequisites for class certification enumerated under CPLR 901 (a) is without merit (see Ackerman v New York Hosp. Med. Ctr. of Queens, 127 A.D.3d 794, 796 [2d Dept 2015], citing Bernstein v Kelso & Co., 231 A.D.2d 314 [1st Dept 1997] [premature to dismiss the class action allegations in the complaint before an answer was filed and discovery occurred]).
Accordingly, it is
ORDERED that defendants' motion to dismiss the complaint (seq. no. 001) is denied; and it is further
ORDERED that defendants are directed to serve an answer to the complaint within 20 days after service of a copy of this order with notice of entry; and it is further
ORDERED that counsel are directed to meet and confer and submit a proposed preliminary conference order to the Court via email or explain why such an order cannot be entered into and request a conference, on or before March 1, 2024.
This constitutes the decision and order of the Court.