| Singh v Covenant Aviation Sec., LLC |
| 2015 NY Slip Op 06911 [131 AD3d 1158] |
| September 23, 2015 |
| Appellate Division, Second Department |
[*1]
| Krishna Singh, Appellant, v Covenant AviationSecurity, LLC, Respondent. |
Karpf, Karpf & Cerutti, P.C., Astoria, N.Y. (Adam C. Lease of counsel), forappellant.
Griffith & Jacobson, LLC (McBreen & Kopko, Jericho, N.Y. [Richard A.Auerbach], of counsel), for respondent.
In an action to recover damages for discrimination in employment in violation ofExecutive Law § 296 and Administrative Code of the City of New York§ 8-107, the plaintiff appeals, as limited by his brief, from so much of anorder of the Supreme Court, Kings County (Schmidt, J.), entered March 27, 2013, asgranted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the defendant's motion which was for summary judgmentdismissing the cause of action alleging a violation of Administrative Code of the City ofNew York § 8-107, and substituting therefor a provision denying thatbranch of the motion; as so modified, the order is affirmed insofar as appealed from,without costs or disbursements.
Covenant Aviation Security, LLC (hereinafter the defendant), provided securityservices at John F. Kennedy International Airport (hereinafter the airport) under acontract with the Port Authority of New York and New Jersey. The plaintiff, whoidentifies himself as Indian, was employed by the defendant as a security guard at theairport from February 1, 2007, through July 15, 2010, when his employment wasterminated for falling asleep while on duty. Thereafter, the plaintiff commenced thisaction, alleging that he was wrongfully terminated from employment on the basis of hisrace or national origin in violation of Executive Law § 296 andAdministrative Code of the City of New York § 8-107. The plaintiff allegedthat his tour supervisor harassed, degraded, and subjected him to racially discriminatorycomments throughout his employment. He also alleged that, at least in part because ofracial discrimination, his supervisor reported him to the defendant's higher levelmanagement for sleeping on the job on July 15, 2010. The supervisor's report resulted inthe termination of the plaintiff's employment. The plaintiff admitted in his personalstatement regarding the incident, and at his deposition, that he had been asleep; he saidhe had not known that the allergy medication he took would cause him to fall asleep.
After discovery was completed, the defendant moved for summary judgmentdismissing the complaint. The Supreme Court granted the motion, and the plaintiffappeals.
[*2] The Supreme Court correctlygranted that branch of the defendant's motion which was for summary judgmentdismissing the cause of action alleging a violation of the New York State Human RightsLaw (Executive Law § 296), but erred in granting that branch of the motionwhich was for summary judgment dismissing the cause of action alleging a violation ofthe New York City Human Rights Law (Administrative Code § 8-107).
The New York State Human Rights Law (Executive Law § 296)provides that it is an unlawful discriminatory practice "[f]or an employer or licensingagency, because of an individual's age, race, creed, color, national origin, sexualorientation, military status, sex, disability, predisposing genetic characteristics, maritalstatus, or domestic violence victim status, to refuse to hire or employ or to bar or todischarge from employment such individual or to discriminate against such individual incompensation or in terms, conditions or privileges of employment" (Executive Law§ 296 [1] [a]). To establish a cause of action alleging a violation of thisprovision at trial, a plaintiff has the burden of showing, prima facie, that (1) he or she is amember of a protected class; (2) he or she was qualified to hold the position at issue, (3)he or she was terminated from employment, and (4) the termination occurred undercircumstances that give rise to an inference of discrimination (see Forrest v Jewish Guild for theBlind, 3 NY3d 295, 305 [2004]; Furfero v St. John's Univ., 94 AD3d 695, 696 [2012]). Inthe context, however, of a defendant's motion for summary judgment, the defendant needonly establish, prima facie, the absence of any of these elements (see e.g. Furfero v St.John's Univ., 94 AD3d at 697-698). In connection with the fourth element, adefendant, upon offering legitimate, nondiscriminatory reasons for the challenged action,is also required to demonstrate the absence of a triable issue of fact as to whether itsexplanation for its termination of the plaintiff's employment was pretextual (seeForrest v Jewish Guild for the Blind, 3 NY3d at 305; Furfero v St. John'sUniv., 94 AD3d at 697; Michno v New York Hosp. Med. Ctr. of Queens, 71 AD3d746, 746-747 [2010]; seealso Nettles v LSG Sky Chefs, 94 AD3d 726, 728 [2012]).
Here, the defendant satisfied its burden on its motion for summary judgment byestablishing a legitimate nonpretextual reason for terminating the plaintiff's employment.Specifically, it presented evidence that the plaintiff was found asleep while on duty, thatsleeping while on duty is a violation of company rules, and that the plaintiff'semployment was terminated in accordance with a no-tolerance policy for such violations.The burden thus shifted to the plaintiff to demonstrate the existence of a triable issue offact as to whether the reason given for the termination of his employment was true or waspretextual (see Nura vInternational Shoppes, LLC, 130 AD3d 697 [2015]; Nettles v LSG SkyChefs, 94 AD3d at 728). The plaintiff failed to raise a triable issue of fact in thisregard (see Cotterell v State ofNew York, 129 AD3d 653, 655 [2015]; Apiado v North Shore Univ. Hosp. [At Syosset], 66 AD3d929, 930 [2009]). Indeed, the plaintiff admitted that he had been asleep while onduty. Moreover, he presented no evidence that his race or ethnicity "played a motivatingor substantial role" in the defendant's decision to terminate his employment(Michaelis v State of New York, 258 AD2d 693, 694 [1999]; see Sandiford v City of N.Y. Dept.of Educ., 22 NY3d 914, 916 [2013]). Accordingly, the Supreme Court properlyawarded summary judgment to the defendant dismissing the cause of action alleging aviolation of Executive Law § 296 (see Cotterell v State of NewYork, 129 AD3d at 655; Apiado v North Shore Univ. Hosp. [At Syosset], 66AD3d at 930).
We reach a different result with respect to the cause of action alleging a violation ofthe New York City Human Rights Law. Three provisions of that law are relevanthere.
The first, Administrative Code § 8-107 (1) (a), provides that "[i]t shallbe an unlawful discriminatory practice . . . [f]or an employer or anemployee or agent thereof, because of the actual or perceived age, race, creed, color,national origin, gender, disability, marital status, partnership status, sexual orientation oralienage or [*3]citizenship status of any person, to refuseto hire or employ or to bar or to discharge from employment such person or todiscriminate against such person in compensation or in terms, conditions or privileges ofemployment" (emphasis added).
The second, Administrative Code § 8-107 (13) (b) (1), provides, asrelevant here, that an employer may be liable under Administrative Code§ 8-107 (1) (a) for the conduct of an employee or agent "only where. . . the employee or agent exercised managerial or supervisoryresponsibility."
The third, Administrative Code § 8-130 ("Construction"), mandates abroad interpretation of the New York City Human Rights Law: "[t]he provisions of thistitle shall be construed liberally for the accomplishment of the uniquely broad andremedial purposes thereof, regardless of whether federal or New York State civil andhuman rights laws, including those laws with provisions comparably-worded toprovisions of this title, have been so construed."
The plaintiff seeks to hold the defendant liable for the discriminatory conduct of an"employee" (Administrative Code § 8-107 [1] [a]), specifically, his toursupervisor (see Administrative Code § 8-107 [13] [b] [1]). Theplaintiff alleges that the supervisor reported him to the defendant's management at leastin part because of racial or ethnic animus, that the supervisor did not report numerousnon-Indian employees who had fallen asleep on duty, and that the supervisor's motivationin this regard is actionable against the defendant under the New York City Human RightsLaw (see Administrative Code § 8-107 [1] [a]; [13] [b] [1]; Zakrzewska v New School, 14NY3d 469, 481 [2010]), even in light of the plaintiff's admission that he wassleeping while on duty.
The Court of Appeals has recognized that the New York City Human Rights Lawmust be construed "broadly in favor of discrimination plaintiffs, to the extent that such aconstruction is reasonably possible" (Albunio v City of New York, 16 NY3d 472, 477-478[2011]; see Bennett v HealthMgt. Sys., Inc., 92 AD3d 29, 34 [2011]). Thus, the New York City HumanRights Law is to be more broadly interpreted than similarly worded federal or Stateantidiscrimination provisions (see Zakrzewska v New School, 14 NY3d at 479).The Appellate Division, First Department, has interpreted the New York City HumanRights Law as requiring that unlawful discrimination play " 'no role' " inan employment decision (Bennett v Health Mgt. Sys., Inc., 92 AD3d at 40,quoting Williams v New YorkCity Hous. Auth., 61 AD3d 62, 78 n 27 [2009]). Our Court has expressedgeneral agreement with the First Department's interpretation of the New York CityHuman Rights Law (see Nelsonv HSBC Bank USA, 87 AD3d 995, 999 [2011]). Thus, under the broadlyworded and broadly interpreted New York City Human Rights Law, if the supervisor'sdecision to report the plaintiff was motivated by racial or ethnic animus, even in part, thedefendant may be held liable.
The evidence undisputedly established that the plaintiff's employment was terminatedby the defendant because the plaintiff was found to be asleep while on duty, in violationof its rules. Additionally, there was evidence that the defendant had a zero-tolerancepolicy with respect to violations of that rule. Further, it is also not disputed that thedefendant's no-tolerance policy regarding the termination of the employment ofemployees found sleeping while on duty is a legitimate policy. Nevertheless, the plaintiffpresented evidence that his supervisor reported him to the defendant's management inpart out of racial animus, and did not report other, non-Indian employees who werefound sleeping while on duty. Thus, the plaintiff raised a triable issue of fact as towhether his supervisor's unlawful discrimination, which is to be imputed to thedefendant, played a role in the termination of the plaintiff's employment. Accordingly,the Supreme Court erred in granting that branch of the defendant's motion which was forsummary judgment dismissing the cause of action alleging a violation of the New YorkCity Human Rights Law (cf.Boyce v Gumley-Haft, Inc., 82 AD3d 491, 492 [2011]). Balkin, J.P., Leventhal,Hall and Hinds-Radix, JJ., concur.