Opinion
158103/2014
12-15-2015
Thomas Turner, Plaintiff, v. Manhattan Bowery Management Corporation and ANTONIO VILLANUEVA, Defendants.
For Plaintiff EMRE POLAT of Porzio Bromberg & Newman P.C. 100 Southgate Pkwy Morristown, NJ 07960 and ROBERT DANIEL SALAMAN of Akin Law Group, PLLC 45 Broadway, Suite 1420 New York, NY 10006 For Defendants JASON A ZOLDESSY and SARAH KATHERINE HOOK of JACKSON LEWIS LLP 666 Third Avenue 29TH Floor NEW YORK, NY 10017
For Plaintiff EMRE POLAT of Porzio Bromberg & Newman P.C. 100 Southgate Pkwy Morristown, NJ 07960 and ROBERT DANIEL SALAMAN of Akin Law Group, PLLC 45 Broadway, Suite 1420 New York, NY 10006 For Defendants JASON A ZOLDESSY and SARAH KATHERINE HOOK of JACKSON LEWIS LLP 666 Third Avenue 29TH Floor NEW YORK, NY 10017 Carol R. Edmead, J.
In this action alleging racial discrimination, retaliation, and hostile work environment, defendants Manhattan Bowery Management Corporation ("MBMC") and Antonio Villanueva ("Villanueva") (collectively, "defendants") move for summary judgment dismissing the complaint of the plaintiff Thomas Turner ("plaintiff"), a former employee of MBMC.
Plaintiff also sues for intentional infliction of emotional distress.
Plaintiff's duties as an Area Maintenance worker at the time of his discharge included, but were not limited to, working for the Graffiti-Free NYC Program (the "Program") for MBMC, where, in response to "311" phone calls complaining of graffiti, he and another employee, would drive out to the reported location of the graffiti and power wash and/or paint to eliminate the graffiti. (Complaint, ¶22).
MBMC contracts with New York City Economic Development Corp. ("EDC") to run the Program.
Villanueva, also an MBMC employee, was an Assistant Supervisor at the time of plaintiff's discharge, and responsible for daily work assignments of plaintiff and other Area Maintenance workers. (See Complaint, ¶24).
Summary Judgment
It is well settled that where a defendant is the proponent of a motion for summary judgment, the defendant must establish that the "cause of action . . . has no merit" (CPLR §3212[b]) sufficient to warrant the court as a matter of law to direct judgment in its favor (Friedman v BHL Realty Corp., 83 AD3d 510, 922 NYS2d 293 [1st Dept 2011]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853, 487 NYS2d 316 [1985]). The summary judgment movant must make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012], citing Alvarez v Prospect Hosp., 68 NY2d 320, 501 NE2d 572 [1986] and Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).
Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action (CPLR §3212 [b]; Madeline D'Anthony Enterprises, Inc. v Sokolowsky, 101 AD3d 606, 957 NYS2d 88 [1st Dept 2012]).
Plaintiff sues under New York State Executive Law §296 for discriminatory discharge of employment (first cause of action), New York State Executive Law §296(7) for discriminatory retaliation (second cause of action), New York City Administrative Code§ 8-107 (1)(a) for discriminatory discharge of employment and hostile work environment (third cause of action), New York City Administrative Code §8-107(1)(e) for discriminatory retaliation (fourth cause of action), and intentional infliction of emotional distress (fifth cause of action).
New York State Executive Law §296 (1) makes it unlawful for "an employer, because of an individual's . . . race . . . to . . . discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment." Section 296(7) makes it an "unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article or because he or she has filed a complaint, testified or assisted in any proceeding under this article."
The New York City Administrative Code § 8-107 (1)(a) makes it "an unlawful discriminatory practice" for "an employer or an employee or agent thereof, because of the . . . race . . . of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment." And, Section § 8-107(7) makes it an "unlawful discriminatory practice ... to retaliate or discriminate in any manner against any person because such person has ... opposed any practice forbidden under this chapter."
The New York State (see Executive Law § 296 (1)(a)) and New York City laws are in accord with the federal standards under Title VII of the Civil Rights Act of 1964 (42 USC § 2000; Matter of Aurecchione v New York State Division of Human Rights, 98 NY2d 21, 25-26 [2002]). Thus, the three-step framework established by the Supreme Court in McDonnell Douglas Corporation v Green (411 US 792 [1973]) for cases alleging violations of Title VII of the Civil Rights Act of 1964, is relevant here.
First, the plaintiff employee must make out a prima facie showing of discrimination. Second, once the plaintiff has satisfied his burden, defendant must articulate a clear nondiscriminatory reason for the termination or other action. Third, the employee must show that the defendant's proferred reasons are pretextual (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 316-317 [2004]). Simply, "once a plaintiff has established a prima facie showing of discrimination, a plaintiff "need only point to evidence establishing a reasonable inference that the employer's proffered explanation is unworthy of credence." (Wenping Tu v Loan Pricing Corp., 21 Misc 3d 1104(A), 873 NYS2d 238 (Table) [Supreme Court, New York County 2008]).
And, as pertaining to the New York City discrimination laws, the Appellate Division, First Department in Williams v New York City Housing Authority (61 AD3d 62, 65 [1st Dept 2009]), made clear that the City discrimination laws are to be interpreted more broadly than its state and federal counterparts, in the wake of the Local Civil Rights Restoration Act of 2005, "which mandates that courts be sensitive to the distinctive language, purposes, and method of analysis required by the City Human Rights Law ... requiring an analysis more stringent than that called for under either Title VII or the State HRL."
[T]he Restoration Act notified courts that (a) they had to be aware that some provisions of the City HRL were textually distinct from its State and Federal counterparts, (b) all provisions of the City HRL required independent construction to accomplish the law's uniquely broad purposes and (c) cases that had failed to respect these differences were being legislatively overruled.
(id. at 67-68).
To make a prima facie showing of racial discrimination in employment, plaintiff must initially demonstrate that (1) he is a member of a protected class, (2) he was qualified for the position, (3) he was terminated from employment or suffered an adverse employment action, and (4) the termination or other adverse action occurred giving rise to an inference of discrimination" (Dickerson v Health Management Corporation of America, 21 AD3d 326, 328 [1st Dept 2005]; Forrest v Jewish Guild for the Blind, 3 NY3d at 305). "A person alleging racial or other discrimination does not have to prove discrimination by direct evidence. It is sufficient if he or she proves the case by circumstantial evidence" (Forrest v Jewish Guild for the Blind, 3 NY3d at 326). This is because "[i]t is not often that an employer will use overt methods to discriminate" (id. at 321). "[T]he record must therefore be examined as a whole in order to ascertain whether, in light of all the circumstances, the evidence supports a finding of such intent" (Sogg v American Airlines, Inc., 193 AD2d 153, 160 [1st Dept 1993]).
It is uncontested that plaintiff is a member of a protected class, that he was qualified for the position as an Area Maintenance Worker for MBMC (for which he worked for approximately nine years in removing graffiti from public spaces), and that he was terminated from employment or suffered an adverse employment action.
In response to plaintiff's allegation that his termination was motivated by his race, defendants established that they terminated plaintiff based on their investigation of an incident where it was reported that plaintiff punched a co-worker while at work. Thus, defendants established a clear, nondiscriminatory reason for plaintiff's termination, and there is no issue of fact that defendants terminated plaintiff based on a report that he punched his co-worker. To defeat summary judgment, plaintiff must raise an issue of fact as to whether such reason was "pretextual."
The Eighth Circuit has summarized various methods to show pretext: An employee may prove pretext by demonstrating that the employer's proffered reason has no basis in fact, that the employee received a favorable review shortly before he was terminated, that similarly situated employees [were treated differently], that the employer changed its explanation for why it fired the employee, or that the employer deviated from its policies (Ebersole v Novo Nordisk, Inc., 758 F.3d 917 [8th Cir 2014]; see also Phillips v Mathews, 547 F.3d 905 [8th Cir 2008]; see Green v New Mexico, 420 F.3d 1189 [10th Cir. 2005] ("a plaintiff may show pretext "by providing evidence that he was treated differently from other similarly situated, nonprotected employees who violated work rules of comparable seriousness") cf., Godbolt v Verizon New York, 115 AD3d 493, 981 NYS2d 694 [1st Dept 2014] (granting summary judgment where plaintiff "presented no evidence that defendant's proffered reason for his termination was pretextual and identified no evidence that he was treated differently from similarly situated employees because of his race or criminal history")). "In proving pretext by showing that similarly situated employees were treated more leniently, the plaintiff's comparators' must be similarly situated in all relevant respects'" (Burton v Ark. Sec'y of State, 737 F.3d 1219, 1229 [8th Cir 2013]) (quotation and citations omitted). "The comparators must have dealt with the same supervisor, have been subject to the same standards, and engaged in the same conduct without any mitigating or distinguishing circumstances'" (Id. at 1230) (internal quotation marks and citations omitted). "The comparators need not have committed the exact same offense but must have engaged in conduct of comparable seriousness'" (Id. at 1231) (internal quotation marks and citation omitted)).
Pretext can also be shown by "weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted nondiscriminatory reasons" (Belgasem v Water Pik Technologies, Inc., 457 F Supp2d 1205 [D. Colo. 2006]; Morgan v Hilti, Inc., 108 F3d 1319, 1323 [10th Cir 1997] (emphasis added)).
In regard to the City HRL specifically, a plaintiff may prevail if "he or she proves that unlawful discrimination was one of the motivating factors, even if it was not the sole motivating factor, for an adverse employment decision" (Melman v Montefiore, 98 AD3d 107, 946 NYS2d 27 [1st Dept 2012], citing 41 Williams v New York City Hous. Auth., 61 AD3d 62, 78 n. 27, 872 NYS2d 27 [2009], lv. denied 13 NY3d 702, 2009 WL 2622097 [2009]). "If a plaintiff can prevail on a mixed motive' theory, it follows that he or she need not prove that the reason proffered by the employer for the challenged action was actually false or entirely irrelevant. Rather, under this analysis, the employer's production of evidence of a legitimate reason for the challenged action shifts to the plaintiff the lesser burden of raising an issue as to whether the action was motivated at least in part by ... discrimination' . . . or, stated otherwise, was more likely than not based in whole or in part on discrimination'" ( Melman v Montefiore, 98 AD3d at 127, citing Estate of Hamilton v City of New York, 627 F3d 50, 56 [2d Cir 2010] and Aulicino v New York City Dept. of Homeless Servs., 580 F3d 73, 80 [2d Cir 2009] [internal citations and quotation marks omitted]).
Plaintiff sufficiently raised an issue of fact as to whether the proffered reason for his discharge was pretextual.
According to plaintiff, plaintiff asked his co-worker to speak to him outside of their supervisor's office to discuss a debt owed to plaintiff by the co-worker. Upon arriving outside, plaintiff's co-worker had his hands in his pockets, and based on plaintiff having worked with the co-worker in the past, plaintiff knew that the co-worker had a knife in his pocket. When the co-worker pulled his hand out of his pocket with a knife, plaintiff threw up his hands to create "space between" him and the co-worker, as he did not want "to get cut in the face." (EBT, p 180). Plaintiff denied throwing a punch at him, but stated that "I spaced myself between him, like yo." (EBT, pp 180-181). The co-worker then returned into Villanueva's office and said "Listen, you better call somebody before I stab him in the neck." (EBT, p177) Villanueva called Carlos LaSalle (of the EDC), who in turn called Eneas (Ernie) Talbot, MBMC's Facilities Director, who was in charge of supervising the Program. When Villanueva called plaintiff in the office, "he gave me a yellow sticky tape and said, Call Ernie. I called Ernie right there and I said, I'll come there now. Ernie says, No, I want to speak to both of you guys to see what's going on." (EBT, pp 177-178). Plaintiff and the co-worker were sent home that day.
Upon plaintiff's return to work the following day, he observed the co-worker leaving from his meeting with Talbot (EBT, pp 178, 181). Plaintiff testified that Talbot asked him whether he hit the co-worker and plaintiff responded "No." (EBT, p 184) Plaintiff then explained his version of the incident to Talbot, and answered, upon questioning, that he did not strike the co-worker and that the co-worker had a knife.
The same date, Talbot recommended that MBMC terminate plaintiff.
Jessica Amsterdam, the Chief of Staff for MBMC, "concluded that there were adequate grounds to terminate Plaintiff's employment" based "on the information provided in Mr. Taibot's October 29th memorandum" (Affidavit, ¶18).
It is undisputed that plaintiff is African-American; the co-worker is Hispanic; Villanueva is Hispanic; and the co-worker was not reprimanded in any manner.
According to plaintiff, Villanueva assigned plaintiff and other African Americans to areas with higher crime rates. "Certain areas [are] considered white areas, good areas. I can get sent to Brownsville or East New York where there's 20 guys, Bloods, hanging on the corner in front of this building that I gotta powerwash, and then you're jeopardizing your safety there. You can get sent to the white areas where nobody is around, it's quite [sic], it's nice, it's less graffiti. So, I'll go out that day working like a dog all day, and you might do one or two tags and you're done for the day." (EBT, p 98). Hispanics would be first to receive new trucks upon arrival at the MBMC facility (EBT, p 118). Further, Hispanics were given more favorable tasks, such as "free days" to drive from Brooklyn to the Bronx for the day, where "you take a truck to the Bronx to change the oil or brakes . . . and come back. So that's the day the employee don't work, so we call it a free day.'" ["all you do is drive from Brooklyn to The Bronx, sit there and hang out, take lunch, and come back and put the truck up."] Blacks don't get those days." (EBT, p 115). Plaintiff also submits several statements from witnesses concerning the favorable treatment of Hispanics at the Graffiti Free NYC program ( Briggs v 2244 Morris, L.P., 30 AD3d 216, 817 NYS2d 239 [1st Dept 2006] ("Although hearsay may be used to oppose a summary judgment motion, such evidence is insufficient to warrant denial of summary judgment where, as here, it is the only evidence submitted in opposition")). Such factors, when viewed in the light most favorable to the non-movant plaintiff, are sufficient to raise an issue of fact as to whether the proffered reason for plaintiff's termination was pretextual.
It is noted that the internal memoranda submitted by defendants do not establish that plaintiff admitted to striking his co-worker. They are not signed by plaintiff and constitute hearsay in this regard. Further, the letter plaintiff wrote does not, as defendants contend, contain any admission that he struck his co-worker. At best, it supports plaintiff's position that he attempted to defend himself when his co-worker "started taking his right hand out of his pocket with a knife," and that plaintiff did not strike the co-worker because "he missed."
Talbot's statement that plaintiff "did not say anything about the co-worker having a knife or other weapon during the altercation," and conflicting testimonies concerning the unequal treatment of Hispanics and African-Americans at the Program raise issues of fact.
Defendants insist that plaintiff did not advise them that the co-worker had a knife until days after his termination. Plaintiff disputes this claim, and insists that he told Talbot during his interview, prior to his termination.
As to plaintiff's retaliation claims, under "both the State and City Human Rights Laws, it is unlawful to retaliate against an employee for opposing discriminatory practices" (Forrest v Jewish Guild for the Blind, 3 NY3d at 313; Executive Law § 296 [7]; Administrative Code § 8-107 [7]). In order to make out a retaliation claim, plaintiff must show that (1) he has engaged in protected activity, (2) his employer was aware that he participated in such activity, (3) he suffered an adverse employment action based upon the protected activity, and (4) there is a causal connection between the protected activity and the adverse action (Forrest, supra at 312-313).
Plaintiff states that he complained on numerous occasions to his supervisors about the favoritism afforded to Hispanics, and that he was terminated because of his complaints. Plaintiff complained to Villanueva, Carlos LaSalle [field manager of EDC], Craig Smalls [an African-American, Vice-President of EDC], Tony, and Marcos, "just about all the supervisors there at one time or another," about the favorable treatment toward Hispanics (EBT, pp 141-144). Plaintiff testified that when he was accused of stealing paint and terminated in 2012, he "went to all [his] work sites, measured, took photographs," and "they concluded that . . . it wasn't enough evidence to support the allegations against [him] stealing paint, so [he] was reinstated. And later, it was found out that all the paint that was missing, was missing from the Bronx crew. But nobody Hispanic over there was brought up on charges." (EBT, pp 146-147). According to plaintiff, "My experience throughout the ten years with the company, most people did complain to Human Resources was gone." (EBT, p 88).
Defendants' contention that plaintiff never heard Talbot make any race-based comments or make decisions based on race, ignores the remaining statements made at his deposition: when plaintiff was asked if he heard Talbot say anything discriminatory, he answered that he rarely saw Talbot (EBT, p 96); when asked if he believed that Talbot made the decision to terminate plaintiff based on race, plaintiff said he did not know (EBT, p 96). While defendants state that Villanueva had nothing to do with plaintiff's termination and had no authority to fire plaintiff, and that plaintiff never complained to MBMC that he was being discriminated against, such claims merely raise issues of fact as to whether race played a role in plaintiff's termination, or whether race played any role in the investigation of the incident.
Therefore, dismissal of the first, second, third, and fourth causes of action is denied.
Here, viewing the evidence in a light most favorable to the non-movant plaintiff, plaintiff raised an issue of fact as to whether he was engaged in a protected activity, that is, complaining to his supervisors for the discriminatory treatment, and that he suffered an adverse employment action in that he was eventually terminated from his employment.
It should be noted that, "[i]n 1991, the anti-retaliation provision of the City HRL (Administrative Code § 8-107 [7]) - which had been identical to the State HRL provision - was amended in pertinent part to proscribe retaliation in any manner'" (Williams v New York City Housing Authority, 61 AD3d at 69-70, quoting Local Law § 39 [1991], § 1).
To accomplish the purpose of giving force to the earlier proscription on retaliation in any manner,' the Restoration Act of 2005 amended § 8-107 (7) to emphasize that [t]he retaliation or discrimination complained of under this subdivision need not result in an ultimate action with respect to employment ... or in a materially adverse change in the terms and conditions of employment ... however, ... the retaliatory or discriminatory act or acts complained of must be reasonably likely to deter a person from engaging in protected activity
(id. at 70-71).
In regards to plaintiff's retaliation claim, under the broader construction of the City HRL, a fact finder may reasonably infer that defendants' actions were retaliatory. For example, someone might be deterred from bringing an action if to do so would result in behavior on the part of his employers which might affect his ability to continue to be able to carry out his duties.In addition, even if defendants are deemed to have shown legitimate, nondiscriminatory reasons for their actions, plaintiff has successfully raised an issue of fact as to whether those articulated reasons were merely a pretext, as discussed prior. Thus, as issues of fact exist regarding plaintiff's retaliation claim, defendants are not entitled to summary judgment dismissing plaintiff's claim for retaliation.
In regard to plaintiff's claim that he was subjected to a hostile work environment (contained in the first (State) and third (City) causes of action), to establish a claim for hostile work environment under state law, plaintiff must demonstrate: (1) that the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment; and (2) that a specific basis exists for imputing the objectionable conduct to the employer (Forrest, 3 NY3d at 295). To that effect, a "racially hostile work environment exists when 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" (internal quotation marks and citation omitted) ( id. at 310). A hostile environment will be found if it is demonstrated that a reasonable jury would conclude that "the work environment both objectively was, and subjectively was perceived by the plaintiff to be, sufficiently hostile to alter the conditions of employment for the worse" ( Schiano v Quality Payroll Systems, Inc., 445 F3d 597, 604 [2d Cir 2006]).
In order to determine whether a hostile work environment exists, a totality of the circumstances must be considered, including "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it reasonably interferes with an employee's work performance" (internal quotation marks and citation omitted) (Forrest, 3 NY3d at 310)).
The First Department has held that under the City HRL, the primary issue for the trier of fact is "whether the plaintiff has proven by a preponderance of the evidence that [he] has been treated less well than other employees" because of his race, and the alleged offensive conduct need not be severe or pervasive in order to establish a hostile environment (Williams v New York City Housing Authority, 61 AD3d at 78). However, conduct that amounts to mere "petty slights or trivial inconveniences," is not actionable (id. at 80).
Here, plaintiff presented sufficient evidence from which a reasonable jury could conclude that he was subjected to conduct so severe or pervasive as to have unreasonably interfered with his work performance, as discussed previously, to support a hostile environment claim. Racial slurs and use of the "N" word on a daily or weekly basis over several years, repeated references to Hispanics "being too Black," and repeatedly assigning African-Americans to undesirable and potentially more dangerous locations to work, sufficiently support such a claim (Rensselaer County Sheriff's Dept. v New York State Div. of Human Rights, 131 AD3d 77, 715 NYS3d 227 [3d Dept 2015]; cf. Forrest v Jewish Guild for the Blind, 3 NY3d at 311 [while racial slurs were deplorable, the use of three epithets over a nine-year employment history did not satisfy test for a hostile work environment]; Thompson v Lamprecht Transport, 39 AD3d at 847 [no evidence that plaintiff's coworker's isolated remarks and offensive conduct were so severe or pervasive as to permeate the workplace and alter the conditions of her employment]).
It appears that defendants mischaracterize testimony in an apparent attempt to shade a finding of an absence of hostile work environment. For example, by stating that plaintiff "admits that African-American employees were assigned favorable assignments such as bringing the vehicles to the Bronx for servicing," defendants overlook the context of plaintiff's testimony in this regard:
Q: In Paragraph J you say that "Defendant Villanueva would only send Hispanics for car servicing, a light day of work, and never African Americans." So, is it your testimony that an African American was never sent for car servicing?
A. If it was, I can't recall no African Americans being sent there. That's a free day. Who is going to give a black a free day?
Q. So, it's your testimony that that never happened?
A. No, it's not my testimony that it never happened. It could have happened, but I don't recall it happening.
Q. Isn't it your statement in your complaint that it never happened?
A. As I said, I don't recall it happening, so as far as I'm concerned, it never happened. If
an African American went, he was paired off with a Hispanic. I went up there before.
Q. For car servicing?
A. Yes. I didn't say I never went — but with a Hispanic. The Hispanic happened to be the guy I'm paired up with that day, the call comes, Sent truck 9 up, and that's it.
Q. So, you would agree that African Americans were sent for car servicing with Hispanics.
A. No. They don't do that on a regular basis.
Q. But it happened, correct?
A. It happened under certain circumstances; it's not a regular.
Q. So, if that happened, it would be both an exception to the fact that African Americans were usually only paired with other African Americans, as well as an exception to the fact that African Americans weren't sent for car servicing, correct?
A. If it happened, it was because it was only forced to be done that way because of that particular day, or who was off or on that day. It wasn't a decision made just based, This is what I'm going to do; something had to come in between that.
(EBT, pp 125-126).
By stating that plaintiff "admits" that Villanueva would allow him to leave early if necessary, defendants ignore the infrequency of such necessity:
Q. So, is it your testimony that only in an emergency Mr. Villanueva would ever allow you to leave earlier?
A. It might have happened once.
Q. So, it's your testimony that Mr. Villanueva allowed you to leave before 4 o'clock only once in five or six years?
A. Yes, something like that.
Q. So, if Mr. Villanueva was to testify that you were allowed to leave at 3:30 fairly regularly, would he be lying?
A. Yes.
Q. If Mr. Villanueva were to testify that you were allowed to leave early more than once in five or six years, would he be lying?
A. More than once in five or six years? Like I said, once or twice. I don't recall me leaving — I don't leave anyway. Like I said, I don't leave. I didn't have any excuses or reasons for what to leave.
(EBT, p 122)
That plaintiff testified that Hispanics and African-Americans were paired with each other does not eliminate the issues of fact raised as to the remaining forms of alleged discrimination.
Thus, dismissal of the hostile environment claims is denied.
And, as to plaintiff's intentional infliction of emotional distress claim, the elements of this cause of action are (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and the injury; and (iv) severe emotional distress (Graupner v Roth, 293 AD2d 408 [1st Dept 2002], citing Howell v New York Post Co., 81 NY2d 115, 121 [1993]). The conduct complained of must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious, and utterly intolerable in a civilized community" ( Fischer v Maloney, 43 NY2d 553, 557 [1978]). This threshold of outrageousness is so difficult to reach that, of the intentional infliction of emotional distress claims considered by the Court of Appeals, "every one has failed because the alleged conduct was not sufficiently outrageous" ( Howell, 81 NY2d at 122 [citations omitted]). Those few claims of intentional infliction of emotional distress that have been upheld by this Court were supported by allegations detailing a longstanding campaign of deliberate, systematic and malicious harassment of the plaintiff ( Seltzer v Bayer, 272 AD2d 263 [1st Dept 2000]; see, e.g., Shannon v MTA Metro-North R. R., 269 AD2d 218, 219 [1st Dept 2000] ["a pattern of harassment, intimidation, humiliation and abuse, causing him unjustified demotions, suspensions, lost pay and psychological and emotional harm over a period of years"]; Warner v Druckier, 266 AD2d 2, 3 [1st Dept 1999] ["through various specified acts, deliberately, systematically and maliciously harassed him over a period of years so as to injure him in his capacity as a tenant"]).
Defendants' contention that plaintiff's allegations of discriminatory pairing, assignments, and discharge do not sufficiently rise to the level of outrageous or extreme conduct to make out a case of intentional infliction of emotional distress ignore the remaining bases of the claim, i.e., daily use of the "N" word, negative references to Hispanics "being too Black," and "acting Black," sending African-Americans to less desirable work locations, and unfairly distributing the work assignment of "free days" of driving the trucks to the Bronx for maintenance based on race. Although each individual act allegedly attributable defendants "is probably not actionable," except as to a specific claim for discrimination, "when aggregated over time, the continuous nature of the conduct may make it sufficiently outrageous that a jury could reasonably find in plaintiffs' favor on the emotional distress allegation" (Collins v Willcox Inc., 158 Misc 2d 54, 600 NYS2d 884 [Supreme Court, New York County 1992]).
And, defendants' reliance on Matter of Rudin (6 Misc 3d 1015, 800 NYS2d 356 [Supreme Court, Kings Country 2004]) for the proposition that, an intentional infliction of emotional distress claim cannot be maintained where plaintiff is an at-will employee terminable from his position at any time and for any reason, is misplaced, as such case is factually distinguishable from this matter; unlike the termination in Rudin, plaintiff's termination was allegedly based upon discrimination prohibited by State and City discrimination laws. And, defendants' reliance on dicta in Fischer v Maloney (43 NY2d 553, 373 NE2d 1215, 402 NYS2d 991 [1978]), which was decided under factually distinguishable circumstances, is insufficient to support an outright dismissal of this claim ("it may be questioned whether the doctrine of liability for intentional infliction of extreme emotional distress should be applicable where the conduct complained of falls well within the ambit of other traditional tort liability, here malicious prosecution and abuse of process") (emphasis added)).
Further, defendants' arguments regarding the causal connection between defendants' conduct and plaintiff's alleged injuries, raised for the first time in reply, cannot be considered. (See Wal-Mart Stores, Inc. v U.S. Fidelity and Guar. Co., 11 AD3d 300, 784 NYS2d 25 [1st Dept 2004]; Alrobaia ex rel. Severs v Park Lane Mosholu Corp., 74 AD3d 403, 902 NYS2d 63 [1st Dept 2010] ("The argument on which the court relied, however, was raised for the first time in defendants' reply papers, and should not have been considered by the court in formulating its decision")).
Therefore, dismissal of the intentional infliction of emotional distress claim is also denied.
Conclusion
Based on the foregoing, it is hereby
ORDERED that the motion by defendants Manhattan Bowery Management Corporation and Antonio Villanueva for summary judgment dismissing the complaint of the plaintiff is denied; and it is further
ORDERED that defendants shall serve a copy of this order with notice of entry upon plaintiff within 20 days of entry.
This constitutes the decision and order of the Court. Dated: December 15, 2015 __________________________________ Hon. Carol R. Edmead, J.S.C.