| Nettles v LSG Sky Chefs |
| 2012 NY Slip Op 02472 [94 AD3d 726] |
| April 3, 2012 |
| Appellate Division, Second Department |
| Michael Nettles, Appellant, v LSG Sky Chefs et al.,Respondents. |
—[*1] Seyfarth Shaw, LLP, New York, N.Y. (Paul Galligan, Anjanette Cabrera, and Courtney S.Taymour of counsel), for respondents.
In an action to recover damages for employment discrimination on the basis of race,harassment, and unlawful retaliation in violation of Executive Law § 296, and to recoverdamages for common-law fraud, the plaintiff appeals from an order of the Supreme Court,Queens County (Hart, J.), dated July 2, 2010, which granted the defendants' motion for summaryjudgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the defendants' motion which was for summary judgment dismissing the first cause ofaction, which alleged employment discrimination on the basis of race, and substituting therefor aprovision denying that branch of the defendants' motion; as so modified, the order is affirmed,without costs or disbursements.
In November 1997, the plaintiff, an African-American, while employed as a Vice Presidentof Manufacturing Operations for Beech-Nut Nutrition Corporation (hereinafter Beech-Nut), wassolicited for a position at John F. Kennedy International Airport (hereinafter JFK) with thedefendant LSG Sky Chefs (hereinafter LSG), a food service company that provides preparedfoods to airlines. The position was identified as "Vice President Operations-JFK," with an annualbase salary of $125,000. In addition, LSG offered the plaintiff a cost of living allowance for hisfirst four years of employment. LSG sent a letter to the plaintiff memorializing the terms of itsoffer. LSG's offer letter did not indicate that the plaintiff was assigned a certain grade levelwithin the company for the purpose of salary and benefits. Upon his hire, the plaintiff was theonly African-American vice president in the LSG organization.
When the plaintiff commenced his employment with LSG in December 1997, amemorandum was circulated announcing that he was joining LSG as a "Vice PresidentDesignate." The plaintiff was not informed prior to accepting employment with LSG that hewould be denominated only as a "Designate." The memorandum indicated that the plaintiffwould report directly to John VanDervoort, "Vice President, Operations." An LSG organizationalchart for LSG's "Core Operations" and another for LSG's Corporate Structure showed thatVanDervoort was the Vice President for JFK on the same executive level as Pepe Pinto, who wasVice President for Dallas, Bill Andres, who was Vice President for Chicago, John Dye, who wasVice President for Los Angeles International Airport, and the defendant Dennis Mancini, whowas Vice President for Miami.[*2]
Thereafter, in April 1998, LSG announced that theplaintiff would be assuming the role of "Vice President Operations for JFK and JFK-I," replacingVanDervoort, who was leaving LSG. The plaintiff's salary and benefits did not change to reflectthat he was assuming VanDervoort's position.
In July 1998, Mancini, who commenced his employment with LSG in 1996, was appointedto the position of "Vice President, Core Operations-New York," overseeing JFK and LaGuardiaAirports. As a result, he became the plaintiff's direct supervisor. The plaintiff claims that, overthe next two years, Mancini repeatedly undermined, humiliated, and disrespected him.
In 1999, the plaintiff discovered that his base salary was lower than that of other vicepresidents who had the same or lesser responsibilities than he had. He also discovered that he hadbeen offered fewer stock options than other vice presidents and that it had been decided, during ameeting attended by certain vice presidents and from which he had been excluded, that he wouldnot be included in the "Core Vice President" bonus pool for 1998 bonuses, but, rather, would beincluded in the "New York Market" bonus pool. In April 1999, the plaintiff made a complaint toLSG about the pay disparity, his exclusion from the vice presidents' bonus pool, and Mancini'streatment of him. In October 1999, the plaintiff also requested and was promised a fixedcost-of-living adjustment (hereinafter COLA), but was later denied that adjustment.
In November 1999, the plaintiff requested that Mancini address a situation about which theplaintiff was informed in which racial comments were made by another employee. According tothe plaintiff, Mancini's response to the incident was insensitive and inappropriate and wasindicative of Mancini's discriminatory animus towards African-Americans in general.
In January 2000, the plaintiff retained an attorney to communicate with LSG about itsinvestigation into the plaintiff's complaints. In March 2000, the plaintiff applied for a positionoverseeing the Los Angeles market, but did not get it. In June 2000, LSG announced that theplaintiff was appointed to the position of "Vice President Core Operations, JFK." Despite thispromotion, he was to continue to report to Mancini.
In September 2000, the plaintiff applied for and subsequently obtained a position as the vicepresident overseeing the Florida core market. His annual base salary increased to $158,500.
In March 2001, the plaintiff commenced this action against LSG and Mancini allegingemployment discrimination based on race, a hostile work environment, and unlawful retaliationin violation of Executive Law § 296, as well as common-law fraud. The defendants movedfor summary judgment dismissing the complaint. The Supreme Court granted the defendants'motion. The plaintiff appeals, and we modify.
In order to establish entitlement to judgment as a matter of law dismissing the first cause ofaction, which alleged discrimination based on race in violation of Executive Law § 296 (1)(a), the "defendants [had to] demonstrate either plaintiff's failure to establish every element ofintentional discrimination, or, having offered legitimate, nondiscriminatory reasons for theirchallenged actions, the absence of a material issue of fact as to whether their explanations werepretextual" (Forrest v Jewish Guild forthe Blind, 3 NY3d 295, 305 [2004]; see Morse v Cowtan & Tout, Inc., 41 AD3d 563 [2007]; Cesar v Highland Care Ctr., Inc., 37AD3d 393, 394 [2007]; DelPapa vQueensborough Community Coll., 27 AD3d 614 [2006]; Hemingway v Pelham Country Club,14 AD3d 536 [2005]). The defendants established their prima facie entitlement to judgmentas a matter of law dismissing the first cause of action by submitting evidence that LSG hadlegitimate nondiscriminatory reasons for the difference in pay and stock options between theplaintiff and other vice presidents, the denial of the plaintiff's request for a fixed COLA, and theplaintiff's placement in the New York Market pool versus the Core Vice President bonus pool in1998. They explained that the reason for the difference in pay and stock options was that theplaintiff was a grade-level 23 executive reporting to Mancini, who was a grade-level 24executive and, therefore, the plaintiff was comparing himself to individuals who held the job titleof "Vice President/Core Operations." They also provided evidence that LSG amended its COLApolicy in 1996 prior to the plaintiff's employment, so that all new COLAs were required todecline to zero over a four-year period and, therefore, the only employees with fixed COLAswere those hired prior to the policy change. As for [*3]the bonuspool, the defendants showed that the plaintiff was placed in the New York Market pool becausehe was a grade-level 23 executive and that the Core Vice President bonus pool only included thevice presidents of various "Core" markets, such as Mancini, who reported to "Core Markets"Vice President Kevin Bruce.
However, the Supreme Court improperly determined that the plaintiff failed to raise a triableissue of fact with respect to that branch of the defendants' motion which was for summaryjudgment dismissing the first cause of action. The plaintiff submitted evidence that he assumedVanDervoort's position as a Core Vice President, which required him to report to a Group VicePresident. Further, VanDervoort had been a grade-level 24 executive. The plaintiff also presentedorganizational charts which showed that VanDervoort was on the same executive level as otherCore Vice Presidents, such as Pinto, Andres, Dye, and Mancini, when Mancini was in charge ofthe Miami market, reporting to the same Group Vice President. The plaintiff then reported to thesame Group Vice President as the other Core Vice Presidents as of April 1998 when he assumedVanDervoort's position. Further, another organizational chart, prepared after Mancini moved tothe New York market, showed Dye, Pinto, Mancini, and the plaintiff on the same executive level.Thus, the plaintiff raised a triable issue of fact as to the reason why he was deemed to be agrade-level 23 executive versus a grade-level 24 executive when he was given his formersuperior's title and responsibilities without a commensurate increase in salary, change in grade, orparticipation in the Core Vice President's bonus pool regardless of the fact that, at some pointafter the plaintiff assumed VanDervoort's position, he had to report to Mancini. As to thedefendants' proffered reasons for the disparate treatment between the plaintiff and the other vicepresidents, the plaintiff raised triable issues of fact as to whether the rationale for LSG'sorganizational structure following Mancini's promotion in July 1998 vis-à-vis theplaintiff's grade level, salary, and benefits, and the basis by which LSG determined an employee'spay grade, were pretextual. Although the defendants contend that the plaintiff defined his peersas those holding the same title as his supervisor Mancini, the plaintiff's evidence raises a triableissue of fact as to why the plaintiff, who apparently rose to the same level as the other Core VicePresidents following VanDervoort's departure, was treated differently from the manner in whichthey were treated. In addition, the plaintiff submitted evidence that, although Mancini wasineligible for COLA according to LSG's policy, Mancini requested and was granted a fixed ratherthan declining COLA, while the plaintiff's request for similar relief was denied. Accordingly, theSupreme Court should have denied that branch of the defendants' motion which was for summaryjudgment dismissing the first cause of action alleging employment discrimination on the basis ofrace.
With respect to the plaintiff's claim that he was subjected to racial harassment in violation ofExecutive Law § 296, the Supreme Court properly awarded summary judgment to thedefendants dismissing the second cause of action. A hostile work environment exists where theworkplace is "permeated with discriminatory intimidation, ridicule, and insult that is sufficientlysevere or pervasive to alter the conditions of the victim's employment and create an abusiveworking environment" (Harris v Forklift Systems, Inc., 510 US 17, 21 [1993] [internalquotation marks and citation omitted]; see Forrest v Jewish Guild for the Blind, 3 NY3dat 310). Various factors, such as frequency and severity of the discrimination, whether theallegedly discriminatory actions were threatening or humiliating or a "mere offensive utterance,"and whether the alleged actions "unreasonably interfere[ ] with an employee's work" are to beconsidered in determining whether a hostile work environment exists (Forrest v Jewish Guildfor the Blind, 3 NY3d at 310-311). The allegedly abusive conduct must not only have alteredthe conditions of employment of the employee, who subjectively viewed the actions as abusive,but the actions must have created an "objectively hostile or abusive environment—one thata reasonable person would find to be so" (id. at 311). "[M]ere personality conflicts mustnot be mistaken for unlawful discrimination" (id. at 309).
Here, the defendants established, prima facie, their entitlement to judgment as a matter oflaw dismissing the plaintiff's hostile work environment claim by presenting evidence that theallegedly offensive conduct was nothing more than intermittent work-related conflict. Further,there was only one incident involving comments of a racial animus by another employee, whichdid not involve the plaintiff, who was not present. In opposition, the plaintiff failed to raise atriable issue of fact, since he presented evidence showing only that he subjectively perceived allof the incidents to be race-based discrimination by Mancini and not that Mancini's actions wereobjectively offensive and pervasive enough to have created a hostile work environment (id.at 311). As a matter [*4]of law, neither the plaintiff'spersonality conflict with Mancini nor the one isolated incident of derogatory comments madeoutside of the plaintiff's presence by another employee are severe, offensive, or pervasive enoughto amount to a hostile work environment under the Executive Law (id. at 310-311). Thus,the Supreme Court properly granted that branch of the defendants' motion which was forsummary judgment dismissing the second cause of action.
As to the third cause of action, which asserted retaliation in violation of Executive Law§ 296 (1) (e) and (7), the defendants met their prima facie burden by showing that therewas no causal connection between the plaintiff's complaints of discrimination and any of thealleged retaliatory actions, many of which occurred before the plaintiff complained ofdiscrimination (see Forrest v Jewish Guild for the Blind, 3 NY3d at 312). Further, thedefendants presented evidence that, subsequent to the plaintiff's complaints of discriminatorytreatment, the plaintiff was promoted on several occasions and given favorable performancereviews. In opposition, the plaintiff failed to raise a triable issue of fact as to whether there wasany causal connection between his complaints of discrimination and the allegedly discriminatoryactions.
The Supreme Court properly granted that branch of the defendants' motion which was forsummary judgment dismissing the fourth cause of action, which alleged fraud. To properly pleada cause of action to recover damages for fraud, the plaintiff must allege that (1) the defendantsmade a representation of fact which was false and which the defendants knew to be false, (2) themisrepresentation was made in order to induce the plaintiff's reliance, (3) there was justifiablereliance on the part of the plaintiff, and (4) the plaintiff was injured by the reliance (see Selechnik v Law Off. of Howard R.Birnbach, 82 AD3d 1077 [2011]). The measure of damages in a fraud cause of action is" 'indemnity for the actual pecuniary loss sustained as the direct result of the wrong,' " so that aplaintiff is compensated for what he or she actually lost and not for what he or she may havegained in the absence of the alleged fraud (Lama Holding Co. v Smith Barney, 88 NY2d413, 421 [1996], quoting Reno v Bull, 226 NY 546, 553 [1919]).
The plaintiff alleged that the defendants committed fraud by inducing him to leave his formeremployment with Beech-Nut by falsely representing that his title with the defendants would bethat of a Vice President, rather than Vice President Designate, a trainee position, the actual titlehe received upon commencing employment with LSG. The defendants established their primafacie entitlement to judgment as a matter of law dismissing the fourth cause of action by showingthat the plaintiff was given the "Designate" title only during his initial four months with LSGbefore being appointed to a "full" Vice President position upon VanDervoort's departure in April1998. Moreover, the defendants demonstrated that the plaintiff made the same salary as a VicePresident Designate that he had been offered by LSG as a "full" Vice President and, thus, was notdamaged by the alleged fraud. In opposition, the plaintiff failed to raise a triable issue of fact (see e.g. Ferdico v Zweig, 82 AD3d1151, 1154 [2011]; Selechnik v Law Off. of Howard R. Birnbach, 82 AD3d at1077). Mastro, A.P.J., Chambers, Austin and Cohen, JJ., concur. [Prior Case History: 28Misc 3d 1206(A), 2010 NY Slip Op 51198(U).]