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finding prima facie case based on remark by supervisor who made decision to terminate because "a remark is not a 'stray remark' if it has a close nexus to an adverse employment decision"
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99 Civ. 4529 (JGK).
October 6, 2000.
OPINION AND ORDER
The plaintiff, Patrick Thompson ("Thompson") has filed this action against American Eagle Airlines, Inc. ("American Eagle Airlines"), Flagship Airlines, Inc. d/b/a/ American Eagle ("Flagship Airlines"), Pamela Wheatley ("Wheatley"), American Airlines, Inc. ("American Airlines"), American Airlines Security Corp. ("American Airlines Security"), AMR, Inc. ("AMR"), and American Eagle, Inc. ("American Eagle") alleging claims of race and national origin discrimination under the New York City Human Rights Law, New York City Administrative Code § 8-107 ("N.Y.CHRL") and the New York State Human Rights Law, N.Y. Executive Law § 296 ("NYHRL"), as well as claims of assault, battery, defamation, battery, false imprisonment, conversion, and fraud. All defendants have moved for summary judgment under Federal Rule of Civil Procedure 56.
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are factual issues to be tried." Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986).
On a motion for summary judgment, once the moving party meets its initial burden of demonstrating the absence of a genuine issue of material fact, the nonmoving party must come forward with specific facts to show there is a factual question that must be resolved at trial. See Fed.R.Civ.P. 56(e). The non-moving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998) (collecting cases); Wyler v. Unites States, 725 F.2d 156, 160 (2d Cir. 1983).
II.
There is no genuine dispute as to the following facts except where noted. The plaintiff, a black male of Jamaican national origin, was employed by Flagship Airlines as a ramp service employee at John F. Kennedy Airport ("JFK"). (Compl. ¶ 1; Def's 56.1 Statement ¶ 1.) Flagship Airlines was merged into American Eagle on May 14, 1998. (Compl. ¶ 2; Def's 56.1 Statement ¶ 2.) Thompson was one of about 120 employees working under Wheatley in American Eagle's ramp service operations at JFK. (Compl. ¶ 9; Def's 56.1 Statement ¶ 14.) Wheatley was a Ramp Services Shift Manager. (Compl. ¶ 6; Def's 56.1 Statement ¶ 32.)
On the evening of April 2, 1998, Thompson was on duty emptying waste from airplane bathroom facilities using a lavatory truck. (Thompson Tr. 67; Def's 56.1 Statement ¶ 15.) While inside the truck and waiting to service the facilities of one of the planes, he was approached by the plane's captain, Bonnie Harrell ("Harrell"). (Thompson Tr. 112; Def's 56.1 Statement ¶ 27.) Harrell and Thompson became involved in a verbal disagreement concerning his use of the lavatory truck. (Compl. ¶ 12; Thompson Tr. 116-23; Def's 56.1 Statement ¶ 28.) Eventually, a flight attendant from the plane intervened to separate Harrell and Thompson. (Thompson Tr. 161-62; Def's 56.1 Statement ¶ 31.) Harrell later complained to Wheatley, who was the supervisor of the ramp, about the incident. (Compl. ¶ 13; Def's 56.1 Statement ¶ 32.)
Wheatley took a written statement regarding the incident from Thompson. (Compl. ¶ 13; Def's 56.1 Statement ¶ 33.) Wheatley and Thompson later met to discuss the incident at which point their accounts differ. Thompson alleges that Wheatley stated: "you are nothing but an immigrant" and "you have no rights in the company and no rights in this country." (Compl. ¶ 13; Thompson Tr. 337.) Wheatley denies this allegation. (Wheatley Decl. ¶ 17.)
Thompson was sent for a drug test to which he consented and was suspended without pay pending the results of the test. (Compl. ¶ 14; Thompson Tr. 168; Def's 56.1 Statement ¶ 36.) wheatley informed Thompson that Flagship would pay for his cab ride home. (Compl. ¶ 14; Def's 56.1 Statement ¶ 38.) Thompson contends that Wheatley told him that she would call the police and have him arrested if he attempted to drive home in his own vehicle. (Compl. ¶ 14; Thompson Tr. 173-74.) Wheatley contends that she informed Thompson of Flagship's policy that a supervisor notify police if an employee insists on driving home after a drug test. (Def's 56.1 Statement ¶ 39.) In the end, Flagship paid for Thompson's transportation home. (Compl. ¶ 14; Thompson Tr. 174; Def's 56.1 Statement ¶ 40.) Thompson returned to the airport later in the morning at his own expense to retrieve his car. (Compl. ¶ 14;. Thompson Tr. 174-75.)
Thompson's drug tests came back negative and he returned to work where he was assigned to the bag room. (Compl. ¶ 15; Def's 56.1 Statement ¶ 41.) On the evening of April 15, 1998, Wheatley instructed Thompson to go to the Flagship conference room for a meeting. (Thompson Tr. 219; Def's 56.1 Statement ¶ 44.) Thompson maintains that it was 10:50 p.m. and he informed Wheatley that he needed to pick up his children from their babysitter. (Compl. ¶ 16; Thompson Tr. 220-21.) Both parties agree that Garfield Smith ("Smith") was eventually selected as a peer witness for Thompson. (Thompson Tr. 186; Def's 56.1 Statement ¶ 47.) Before the meeting began, Thompson attempted to obtain his time card and punch out but was not given his time card. (Compl. ¶ 17; Thompson Tr. 231-32; Def's 56.1 Statement ¶ 51.) He then repeatedly informed Wheatley that he wanted to leave and Wheatley denied his requests and instructed him to go into the conference room for the meeting. (Thompson Tr. 181-88; Def's 56.1 Statement ¶ 53.)
The accounts of the parties then diverge. Thompson states that he then attempted to leave the building and Wheatley attempted to block him in the hallway in front of the door leading to the exit. (Thompson Tr. 238-39.) Smith then stepped between Thompson and Wheatley. ( Id.) Thompson claims that Wheatley screamed, "he assaulted me," after he dodged and stepped around her. (Thompson Tr. 246.) He went through the door and was grabbed by the back by an American Airlines security employee. (Thompson Tr. 272-73.) As he tried to enter the terminal building, another American Airlines security employee would not let him go through the door and twisted his arm by the wrist for a good amount of time. (Thompson Tr. 307-09.) Thompson then broke free and left JFK. (Compl. ¶ 18.) Thompson went to Montefiore Hospital where he was treated for injuries caused by the American Airlines security guards. (Thompson Tr. 316.)
The defendants tell a different story. They claim that Wheatley gave Thompson a direct order to go to the conference room or be terminated, which he did not obey. (Def's 56.1 Statement ¶¶ 54-55.) Thompson then began moving quickly and threateningly towards Wheatley, and Smith came into the hallway and physically prevented Thompson from moving forward. (Def's 56.1 Statement ¶¶ 56-57.) As Thompson was leaving, Wheatley followed Thompson to get his keys and access cards to restricted airport areas. (Def's 56.1 Statement ¶ 61.) William Kern ("Kern"), Security Supervisor for American Airlines and Luigi Loseto ("Loseto"), Traffic Supervisor for American Airlines then arrived in response to Wheatley's earlier call for security. (Def's 56.1 Statement ¶¶ 61-62.) They spoke with Thompson outside the terminal and did not use force. (Def's 56.1 Statement ¶¶ 63-65.)
Thompson's employment with Flagship was later terminated on April 16, 1998. He originally filed this action in New York State Supreme Court, Bronx County, and the defendants removed the case to federal court pursuant to 28 U.S.C. § 1441(a) based on diversity of citizenship jurisdiction.
III.
The plaintiff's first two causes of action allege that defendants subjected him to a discriminatory discharge and a hostile work environment in violation of the Human Rights Laws of New York City and New York State.
Claims brought under these state and city human rights laws are evaluated under the same framework used in Title VII claims. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n. 1 (2d Cir. 2000). A plaintiff in a Title VII action may prove discrimination by proving "pretext" under the three-step analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) or by way of a "mixed-motives" analysis. See Stratton v. Dep't for the Aging for the City of New York, 132 F.3d 869, 878 (2d Cir. 1997). Under theMcDonnell Douglas framework, the plaintiff carries the initial burden of establishing a prima facie case of discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097, 2106 (2000); St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993);Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252 (1981) (citing McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973)); Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997). The burden of establishing a prima facie case is de minimis. See Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994). To establish a prima facie case of employment discrimination, a plaintiff must show (1) membership in a protected class; (2) satisfactory job performance; (3) termination from employment or other adverse employment action; and (4) that this adverse employment decision occurred under circumstances giving rise to an inference of discrimination. See Tarshis v. Riese Organization, 211 F.3d 30, 35 (2d Cir. 2000) (citing McDonnell-Douglas Corp., 411 U.S. at 802); Quaratino v. Tiffany Co., 71 F.3d 58, 64 (2d Cir. 1995). When a plaintiff has successfully demonstrated the elements of a prima facie case, the burden of production shifts to the defendant to "articulate some legitimate, nondiscriminatory reason for the employee's rejection." Burdine, 450 U.S. at 252-53. After the defendant articulates a legitimate reason for the action, the presumption of discrimination raised by the prima facie case drops out, and the plaintiff has the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision and that race was. See id. at 254-56; Fisher, 114 F.3d at 1336. "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253; see also Reeves, 120 S.Ct. at 2106; Fisher, 114 F.3d at 1336.
A plaintiff establishes a "mixed-motives" case by "convinc[ing] the trier of fact that an impermissible criterion in fact entered into the employment decision." Tyler v. Bethlehem Steel Corp., 958 F.2d 1176, 1181 (2d Cir. 1992). The plaintiff must "focus his proof directly at the question of discrimination and prove that an illegitimate factor had a `motivating' or `substantial' role in the employment decision." Id. (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989)); see Stratton, 132 F.3d at 878 n. 4. If the plaintiff demonstrates that a discriminatory motive exists, even if a legitimate motive also exists, the burden of proof passes to the defendant to establish that it would have made the same decision without considering the illegitimate factor. See Price Waterhouse, 490 U.S. at 250; Tyler, 958 F.2d at 1181. See also Anatsui v. Food Emporium, No. 99 Civ. 1337, 2000 WL 1239068 (S.D.N.Y. Sept. 1, 2000).
The defendants do not dispute that the plaintiff has established the first and third elements of the test for a prima facie discrimination case, that he is a member of a protected class and that he was discharged. However, they initially contend that he fails to establish the second prong of the test because he was not performing his job satisfactorily at the time of discharge. To establish a prima facie case, a plaintiff need only show that he "possesses the basic skills necessary for performance of [the] job." De La Cruz v. New York City Human Resources Admin. Dep't of Social Serv., 82 F.3d 16, 20 (2d Cir. 1996) (citing Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir. 1978)). The defendants argue that Thompson's performance was unsatisfactory because he disobeyed Wheatley's order to go to a conference room for a "Career Decision Day" meeting and allegedly made threatening movements in her direction. The defendants mistakenly conflate the prima facie finding of basic competency with the issue of whether the employee behaved in such a way that it was appropriate to discharge him. See, e.g., Powell, 580 F.2d at 1155 (warning against merging concerns more appropriate for rebuttal stage with plaintiff's minimal prima facie burden). The fact that an employee disobeyed orders, while possibly a legitimate reason for termination, is distinct from the issue of whether he has the minimal ability to perform the job. See Owens v. New York City Hous. Auth., 934 F.2d 405, 409 (2d Cir. 1991) ("An individual may well have the ability to perform job duties, even if her conduct on the job is inappropriate or offensive."). It is undisputed that the plaintiff worked as a ramp service agent from 1988 to 1998 without incident, the last six years of which were in the employ of Flagship. (Compl. ¶¶ 10-11.) Thus Thompson has the basic skills necessary to perform his job.
The defendants also argue that the plaintiff fails to establish a prima facie case because he has not shown that his discharge occurred under circumstances giving rise to an inference of discrimination. The plaintiff's evidence to support such an inference is Wheatley's alleged comment: "You are nothing but an immigrant, you neither have rights in this country or rights in this company." The defendants respond that such a "stray remark" alone is not enough to establish an inference of discrimination and that Thompson's insubordination was the sole reason for his discharge. However, the Court of Appeals for the Second Circuit found that even stray remarks can be enough to establish a prima facie case of discrimination. See Kirschner v. Office of the Comptroller of the City of New York, 973 F.2d 88, 93 (2d Cir. 1992) ("'stray' remarks in the workplace by persons who are not involved in the pertinent decision making process . . . may suffice to present a prima facie case under the framework set forth in McDonnell Douglas Corp. . . .") (quoting Ostrowski v. Atlantic Mutual Ins., 968 F.2d 171, 182 (2d Cir. 1992)); see also Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994) (noting that "employer's criticism of the plaintiff's performance in ethnically degrading terms. contributes to a permissible inference of discriminatory intent) Furthermore, a remark is not a "stray remark" if it has a close nexus to an adverse employment decision. See Kirschner, 973 F.2d at 93; Cartagena v. Ogden Services Corp., 995 F. Supp. 459, 463 (S.D.N.Y. 1998). In this case, Wheatley was Thompson's supervisor and made the decision to terminate Thompson. (Def's 56.1 Statement ¶ 60.) Her alleged reference to Thompson's national origin and assertion that he had no rights in the company are enough so that a reasonable factfinder could conclude that there is a nexus between that discriminatory remark and Wheatley's decision to fire Thompson. While defendants point to the ethnic composition of their workforce to negate an inference of discrimination, a diverse workforce in itself does not preclude the finding of an inference of discrimination. See Chambers, 43 F.3d at 38. Thus, Thompson has adduced sufficient evidence at this stage of the proceedings to show that his discharge occurred in circumstances giving rise to an inference of discrimination.
Since the plaintiff has established a prima facia case, the defendants must satisfy their burden to produce a legitimate, non-discriminatory reason for the plaintiff's discharge. They do so by stating that the plaintiff was fired for his insubordination. However, there remains an issue of fact whether the alleged insubordination was the true reason for the termination or whether it was simply a pretext to cover up a discriminatory reason. This is particularly true in view of Wheatley's alleged comment to Thompson and the disputed nature of the actions surrounding his discharge.
Moreover, in view of Wheatley's alleged statement the plaintiff has produced sufficient evidence that race and/or national origin was a "motivating" or "substantial" factor in the employment decision. In a mixed-motives case, "evidence of conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting the alleged discriminatory attitude," is sufficient to shift the burden to the employer to show that the same action would have been taken without the impermissible factor. Ostrowski, 968 F.2d at 182; see also Azar v. TGI Friday's, Inc., 945 F. Supp. 485, 499 (E.D.N.Y. 1996). Wheatley, who allegedly made such a discriminatory comment, made the initial decision to fire Thompson. According to Thompson's version of the facts, his alleged insubordination of failing to stay in the conference room was not substantial and was provoked by Wheatley's unreasonable demands to meet late at night when he had to pick up his children. A reasonable jury could believe Thompson's account and conclude that Wheatley's actions were motivated by discriminatory animus against the plaintiff and that Wheatley would not have terminated the plaintiff in the absence of her discriminatory intent.
Finally, the Defendants do not respond to the plaintiff's charge that he was subjected to a hostile work environment. To survive a motion for summary judgment on a claim of hostile work environment harassment, the plaintiff must show that "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.'" Cruz, 202 F.3d at 570 (quoting Harris v. Forklift Sys,. Inc., 510 U.S. 17, 21 (1993)). A jury that believes Thompson's account could reasonably conclude that he was wrongly singled out for confrontation by Harrell, unfairly singled out by Wheatley in the investigation of the incident, and provoked to insubordination in his final meeting with Wheatley, all on the basis of his race or national origin. If true, it is reasonable to conclude that the actions of Flagship Airline employees altered the conditions of Thompson's employment. Moreover, in view of the defendants' failure to challenge this claim at all, it is not one that could be dismissed on this motion for summary judgment. See. e.g., Abdush-Shahid v. Coughlin, 933 F. Supp. 168, 186 (N.D.N.Y. 1996).
The plaintiff has presented sufficient evidence to create a genuine issue of material fact on his charge of discriminatory discharge and hostile work environment.
II.
The defendants next move to dismiss the plaintiff's defamation claim. In New York, there are "four elements necessary to establish a prima facie case of slander: (1) an oral defamatory statement of fact, (2) regarding the plaintiff, (3) published to a third party by the defendant, and (4) injury to the plaintiff." Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 61 (2d Cir. 1993). The defendants argue that the claim must fail because the plaintiff has not shown special damages. While it is true that "slander as a rule is not actionable unless the plaintiff suffers special damage," Liberman v. Gelstein, 605 N.E.2d 344, 347 (N Y 1992), damages are "presumed when the defamatory statement takes the form of slander per se." Weldy, 985 F.2d at 61-62. For a claim to fall within the slander per se exception, it must "consist of statements (i) charging plaintiff with a serious crime; (ii) that tend to injure another in his or her trade, business, or profession; (iii) that plaintiff has a loathsome disease; or (iv) imputing unchastity to a woman." Liberman, 605 N.E.2d at 347.
The plaintiff has established that his case falls under the first per se exception because assault is a serious crime. As the Court of Appeals for the Second Circuit explained: "Assault is a crime under both state and federal law. Under New York law, most assaults are felonies. . . . Under federal law, there are at least three statutes, under which assault can be a felony and therefore an indictable offense. . . . In short, since assault is a serious, indictable crime under both state and federal law, [a] charge of `aggravated assault' provides a sufficient basis for . . . a slander per se cause of action." Weldy, 985 F.2d at 62.
The defendants counter that Wheatley's statement is not slander per se because it is susceptible to an interpretation other than criminality. The case that the defendants cite for this proposition, Privitera v. Town of Phelps, 435 N.Y.S.2d 402 (N Y A.D. 1981), only holds that accusing a person of being part of a group traditionally associated with crime, specifically the Mafia, without an allegation of an indictable offense is not slander per se. However, having considered Privatera, the Court of Appeals nevertheless concluded that a charge of "assault" was an accusation of a serious, indictable crime. Weldy, 985 F.2d at 62. Thus, the plaintiff has stated a claim for slander per se. The defendants next argue that Wheatley's statement is subject to a qualified privilege. In New York there is a privilege that covers "communication made by one person to another upon a subject in which both have an interest," that has specifically been applied to employees of an organization. Liberman, 605 N.E.2d at 349. But as the plaintiff correctly points out, the statements were published to American Airlines employees who were not co-employees of Wheatley. The issue of whether Wheatley and the American Airlines security guards share a sufficient interest in the subject of the statement for the qualified privilege to attach is an issue of fact that cannot be resolved on this motion for summary judgment.
The plaintiff also argues that even if the qualified privilege applies, the privilege has been lost because the statement was uttered with malice. In New York, a qualified privilege to defamation fails if the plaintiff demonstrates that the defendant uttered the allegedly defamatory statement with malice. See Liberman, 605 N.E.2d at 349. Malice is defined both in the common law sense, as spite or ill will, as well as in the constitutional sense, as knowledge or reckless disregard with respect to the falsity of a statement. See id. The jury could conclude that Wheatley made a knowingly false statement or made the statement with spite or ill will. Thus, the defendants are not entitled to summary judgment on the basis of the qualified privilege.
The plaintiff has demonstrated that the alleged remarks fall under the slander per se category, and has raised genuine issues of fact as to whether the qualified privilege shields the defendants from liability.
III.
The defendants contend that the charges of assault, battery, and false imprisonment should be dismissed because they cannot be held vicariously liable for these alleged torts. The argument is that because Kern and Loseto were not authorized to detain persons or use force, their alleged acts fall outside the scope of their employment. But in New York the fact that an employee carries out that employee's duties "irregularly or with disregard of instruction" does not necessarily mean that an employer cannot be held vicariously liable. Ray v. Metropolitan Transp. Auth., 634 N.Y.S.2d 160, 162 (N.Y. A.D. 1995). Vicarious liability does not attach where a tort is committed solely for personal motives of the employee unrelated to the furtherance of the employer's business. The question of whether an act falls within the employee's scope of employment is normally a question for the jury determined by considering factors such as "whether the specific act was one that the employer could reasonably have anticipated." Colon v. Wal-Mart Stores, Inc., 703 N.Y.S.2d 863, 866 (N.Y.Sup.Ct. 1999) (citation omitted). A factfinder could reasonably conclude that the employees were not acting for personal motives but in furtherance of their employment by American Airlines as security guards and that American Airlines could have reasonably anticipated the use of force by security guards, making it vicariously liable for the alleged assault, battery and false imprisonment of the plaintiff.
IV.
The defendants next move to dismiss the plaintiff's claim of assault. "An `assault' is an intentional placing of another person in fear of imminent harmful or offensive contact." United Nat. Ins. Co. v. Waterfront New York Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993). The defendants point to the following part of Thompson's deposition to argue that Thompson was not assaulted:
Q. [W]ere you under the impression that he was going to exert some sort of physical force on you to get you to go back with him into the . . . building?
A. Could be a possibility, I can't read his mind.
(Thompson Tr. 278-79). But also illustrative is an earlier portion of Thompson's deposition regarding the same incident where the security guard put his hand on Thompson's back:
Q: At this point in time were you afraid he was going to hurt you?
A: In some aspect.
(Thompson Tr. 278).
Moreover, the plaintiff also allegedly suffered a battery when his arm was twisted behind his back. The defendants do not allege that this incident does not raise an issue of fact as to whether a battery occurred. Similarly, the plaintiff would be permitted to testify about what apprehension he had with respect to that alleged battery.
Therefore, there are issues of fact as to whether Thompson was in fear of imminent harmful or offensive contact and was thus assaulted.
V.
The defendants move to dismiss the plaintiff's claim of false imprisonment. "To establish a cause of action alleging . . . false imprisonment, the plaintiff must show that (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement, and (4) the confinement was not otherwise privileged." Lee v. City of New York, 709 N.Y.S.2d 102, 103 (N Y A.D. 2000). The defendants argue that Thompson was not confined because the security guards only detained him for a few seconds. However, New York courts have concluded that in false imprisonment claims, "[w]henever a person unlawfully obstructs or deprives another of his freedom to choose his own location, that person will be liable for that interference." Broughton v. Kellog, 335 N.E.2d 310, 314 (N.Y. 1975). There is sufficient evidence of restraint to survive a motion for summary judgment. The defendants also argue that the actions of the security guards were privileged because they were for the protection of other persons. Generally, restraint is privileged only if it is "reasonable under the circumstances and in time and manner. . . ." Sindle v. New York City Transit Auth., 307 N.E.2d 245, 248 (N.Y. 1973). Thompson has presented sufficient evidence so that the issue of whether his restraint was reasonable is a genuine issue of material fact in dispute.
The plaintiff also argues that Wheatley's alleged actions in blocking the plaintiff's way constituted a false imprisonment. It does not appear that this claim is raised in the Joint Pre-Trial Order. At the argument of this motion the plaintiff asked for leave to amend the Joint Pre-Trial Order to include this claim. The Court advised the plaintiff to make any such motion in writing.
VI.
The defendants argue that the plaintiff's claims of conversion and fraud are preempted by the Railway Labor Act, 45 U.S.C. § 151 et seq. ("RLA"). The RLA only preempts a state law claim if it is dependent on the interpretation of a collective bargaining agreement and does not extend to state law claims that involve "purely factual questions" concerning an employee's conduct. See Hawaiian Airlines, Inc. v. Norris, 512 U.S. 246, 260-63 (1994). The Court of Appeals for the Second Circuit has explicitly held that fraud and misrepresentation claims that do not require the interpretation of a collective bargain agreement are not preempted by the RLA. See, e.g., Hernandez v. Conriv Realty Assoc., 116 F.3d 35, 40 (2d Cir. 1997); Foy v. Pratt Whitney Group, 127 F.3d 229, 235 (2d Cir. 1997).
Under New York law, conversion is any act of dominion wrongfully exerted over another person's personal property inconsistent with that person's rights in the property. See Cumis Ins. Soc., Inc. v. Citibank. N.A., 921 F. Supp. 1100, 1109 (S.D.N.Y. 1996); G.D. Searle Co. v. Medicore Communications, Inc., 843 F. Supp. 895, 912 (S.D.N.Y. 1994).
The plaintiff's conversion claim rests on the purely factual issue of whether Wheatley and Flagship wrongfully exerted dominion over his car. The plaintiff's fraud and misrepresentation claim rests on the factual question of whether Wheatley misrepresented Flagship's policy with respect to not allowing an employer to drive after taking a drug test. The RLA does not preempt the plaintiff's fraud, misrepresentation, and conversion claims.
The defendants additionally contend that the plaintiff has not pleaded his fraud and misrepresentation claims with sufficient particularity. However, the plaintiff has sufficiently alleged the allegedly fraudulent statement — that is, the statement by Wheatley as to the drug policy. The plaintiff has alleged the speaker, the circumstances, the alleged misrepresentation, as well as the reliance and damages. Moreover, the defendants have to date not produced a written Flagship policy that would establish that Wheatley did not make a misrepresentation to Thompson when she asserted that she would have to call the police if he insisted on driving home after his drug test. (Def's 56.1 Statement ¶ 39.) The plaintiff has established a genuine issue of material fact as to whether Wheatley knowingly misrepresented Flagship's policy by telling him that he was not allowed to drive home, and that the plaintiff relied on that statement and incurred expenses to retrieve his car.
VII.
The defendants argue that, while the plaintiff has asserted all claims against all defendants, there is no evidence against various defendants with respect to individual counts. The plaintiff has not responded at all to this aspect of the motion and therefore the motion is granted because the plaintiff has abandoned these claims. See, e.g., New York 10-13 Assoc., Inc. v. The City of New York, No. 98 Civ. 1425, 2000 WL 1376011, at *12 (S.D.N.Y. Sept. 22, 2000).
At the argument of this motion, the plaintiff agreed to this aspect of the motions, except that the plaintiff sought to maintain a claim of false imprisonment against Wheatley and her employer American Eagle. As to that claim, which does not appear to be raised in the Joint Pre-Trial Order, the Court directed the plaintiff to make a written motion to include such a motion.
The plaintiff has conceded that all claims against AMR, American Airlines Security, and American Eagle, Inc. should be dismissed. The remaining defendants as to whom some involvement is alleged on each of the claims is as follows: Counts 1, 2, 4, and 7: American Eagle (which is the successor of Flagship) and Wheatley; Counts 3, 5, and 6: American Airlines. Claims against all other defendants with respect to each of those counts are dismissed.
IX.
The defendants argue that American Eagle, as successor to Flagship, cannot be liable for punitive damages for alleged discrimination in violation of the New York City Human Rights Law. The defendants rely on N.Y.C. Admin. Code § 8-107(13)(f) which provides as follows:
The commission may establish by rule policies, programs and procedures which may be implemented by employers for the prevention and detection of unlawful discriminatory practices by employees, agents and persons employed as independent contractors. Notwithstanding any other provision of law to the contrary, an employer found to be liable for an unlawful discriminatory practice based solely on the conduct of an employee, agent or person employed as an independent contractor who pleads and proves that such policies, programs and procedures had been implemented and complied with at the time of the unlawful conduct shall not be liable for any civil penalties which may be imposed pursuant to this chapter or any civil penalties or punitive damages which may be imposed pursuant to chapter four or five of this title for such unlawful discriminatory practice.
However, while the defendants have presented evidence of their efforts to comply with anti-discrimination laws, they conceded at argument that there is no evidence in this record of what, if any, "policies, programs and procedures" have been established by a New York City Human Rights Commission rule, and therefore there is no evidence that any of the policies and programs of Flagship complied with such a rule. Therefore, the defendants have not shown that they are exempt from liability for punitive damages under § 8-107(13)(f) of the N.Y.C. Administrative Code.
The defendants also rely on § 8-107(13)(d) and(e) of the N YC. Administrative Code. Section 8-107(13)(e) allows an employer to plead and prove various factors where liability for discriminatory conduct is based "solely on the conduct of an employee, agent, or independent contractor." Among the factors that can be pleaded is a "meaningful and responsive procedure for investigating complaints" and a "firm policy against such practices which is effectively communicated." See N YC. Admin. Code § 8-107(13)(d)(1) and (2). However, these factors are not a total defense to a claim for punitive damages but are only "factors" to be "considered in mitigation of civil penalties or punitive damages which may be imposed." N YC. Admin. Code § 8-107(13)(e). In view of the explicit language that these factors are only to be considered as factors in mitigating punitive damages, they are not a complete defense sufficient to strike the claim for punitive damages on a motion for summary judgment.
The defendants also argue that they are entitled to the benefit of the principle articulated by the Supreme Court in Kolstad v. American Dental Assoc., 527 U.S. 526 (1999) with respect to punitive damages under Title VII: "in the punitive damages context, an employer may not be vicariously liable for the discriminatory employment decisions of managerial agents where these decisions are contrary to the employer's `good-faith efforts to comply with Title VII.'" Id. at 545 (citation omitted). However, while consideration of claims brought under the New York City Human Rights Law parallels the analysis used in Title VII claims, see Cruz, 202 F.3d at 565 n. 1, the analysis under federal anti-discrimination laws cannot be used in those cases where the statutes differ. See, e.g., Reeves v. Johnson Controls World Services, Inc., 140 F.3d 144, 154-56 (2d Cir. 1998).
In this case, the New York City Human Rights Law has made good faith compliance procedures only a factor to be considered in mitigation of punitive damages, rather than a complete defense. It is also possible that an employer can adopt programs and procedures that comply with rules established by the New York City Human Rights Commission which would constitute a complete defense to punitive damages. There has, however, been no such showing in this case. Therefore, the compliance efforts by Flagship in this case have not been shown to constitute a complete defense sufficient to strike the claim for punitive damages based on the alleged violation of the New York City Human Rights Law.
The employer defendants also argue that they cannot be held liable for punitive damages for common law torts committed by their employees. In New York, there is only "employer liability for punitive damages . . . when a superior officer in the course of employment orders, participates in, or ratifies outrageous conduct." Loughry v. Lincoln First Bank, 494 N.E.2d 70, 75 (N Y 1986). A superior officer is "more than an agent or `ordinary' officer, or employee vested with some supervisory or decisionmaking responsibility." Id. at 76. "[T]he term must contemplate a high level of general managerial authority in relation to the nature and operation of the employer's business." Id. "This is not to suggest, however, that a "superior officer' can only be found in the executive suite or topmost reaches of corporate government. The agent's level of responsibility within the entity should be sufficiently high that his participation in the wrongdoing renders the employer blameworthy, and arouses the `institutional conscience' for corrective action." Id. at 76 (citation omitted).
Relying on Loughry, the defendants contend that none of the employees who allegedly committed the intentional torts were "superior officers." In Loughry, the New York Court of Appeals concluded that a vice president and manager of the real estate department and director of corporate security at a bank was not a superior officer sufficient to charge his employer with punitive damages for his alleged defamation. However, the Court of Appeals did so only after finding that the record failed to reveal that the bank official had any "significant managerial function in relation to bank operations," and that the power to terminate the plaintiff in fact resided with another bank official. Id. at 381.
In this case, it cannot be said as a matter of law that the individual employees who allegedly committed the intentional torts lacked sufficient managerial authority, such that this issue can be resolved on a motion for summary judgment. In particular, Wheatley was a shift supervisor who had the power to order drug testing, reassign the plaintiff, and ultimately terminate him. Loseto was a traffic supervisor and supervised other employees.
CONCLUSION
For the reasons explained above, the defendants' motion for summary judgment is granted to the extent that the claims are dismissed except as follows: Counts 1, 2, 4, and 7 are continued against Wheatley and American Eagle (which is the successor to Flagship) and Counts 3, 5, and ¶ are continued against American Airlines. The motion for summary judgment is otherwise denied.
SO ORDERED.