Johnson v. The Jack Parker Corporation et al

Filing 146

MEMORANDUM DECISION AND ORDER. I grant the defendant's 110 motion for summary judgment on all of the plaintiff's claims. The Clerk of the Court if respectfully directed to enter judgment in favor of the defendants and close this case. Ordered by Judge Ann M. Donnelly on 7/30/2019. (Greene, Donna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

HOWARD JOERvlSON,

Plaintiff,

MEMORANDUM DECISION
AND ORDER

-against-

17-CV-3042(AMD)
(SJB)

THE JACK PARKER CORPORATION

IN CLERK'S OFRCE

PARKER FOREST HILL, L.P., and
FOREST

US DISTRICT COURT E.D.N.Y,

SAMIR CHRAIBI,

5 JUL?0 2019

5

Defendants.
X

BROOKLYN OFFICE

ANN M.DONNELLY,United States District Judge:

On May 19, 2017, the plaintiff' brought this action alleging employment discrimination
and retaliation against The Jack Parker Corporation, Parker Forest Hills, L.P., and Samir

Chraibi.^ (ECF No. 1.) The defendants moved for summary judgment. (ECFNo. 110.) For
the reasons that follow, the defendants' motion for summary judgment is granted.
BACKGROUND^

The complaint arises out of the plaintiffs employment at and termination from Parker
Towers, an apartment complex in Queens, New York. The plaintiff, an African-American man,
was hired as a full-time doorman in August of 2016. (ECF No. 110-2 ^ 13; ECF No. 144-1 at

'The plaintiffs counsel withdrew from representation in late 2017. (ECF Nos. 26,27, 35.) The plaintiff
now proceeds pro se.
^ The complaint names "Samir Sharabi" as a defendant. (ECF No. 1.) The Court granted the plaintiffs
motion to correct the spelling of the defendant's name on July 6, 2018.

^ The plaintiff has communicated regularly with the Court about various subjects, many of which are
unrelated to this litigation, but has not submitted a response to the defendants' motion or a Rule 56.1
counter-statement of undisputed facts. When the plaintiff failed to respond to the defendants' opposition
motion in December of 2018, the Court gave him an extension, and reminded him that the Court would
decide the motion without his input if he did not file a response. To date, the plaintiff has not responded.
I have reviewed the entire record in connection with this motion, and construe the facts in the light most
favorable to the plaintiff, the non-moving party. See Capobianco v. City ofNew York, 422 F.3d 47,50
n.l (2dCir. 2005).

17.) He was terminated about three months later, in November of 2016. (ECF No. 144-1 at
53.)

Before he was hired for the full-time position, the plaintiff worked as a temporary porter
and doorman, hired by Parker Towers through a staffing agency. (Jd. at 12,13.) In June of

2016, after talking with management about securing a full-time position, the plaintiff submitted

a formal job application. {Id. at 18, 19.) He underwent a drug test and interviewed with Samir
Chraibi, the general manager for the complex, and was hired in August of 2016. {Id.)

The plaintiff alleges that he began experiencing harassment based on "[his] race,[his]
color, and [his] background" as soon as he became a doorman. {Id. at 34.) He claims that Mr.

Chraibi called him multiple times just to see how he answered the phone,that management
falsely accused him of not doing his job, and that Mr. Chraibi asked whether he wanted to work
in the "front" or the "back" ofthe house. {Id.) He claims that Mr. Chraibi asked him ifthe

"carpet[was] dirty or[was] it something[Mr. Chraibi was] smoking." {Id.) Finally, he alleges
that he did not receive a doorman uniform, although he made repeated requests for one. {Id.)
On October 3, 2016,Parker Towers management,including Mr. Chraibi, met with the

plaintiff about his performance.^ (ECF No. 144-3 at 57.) The plaintiff does not remember what
management told him,
(ECF No. 144-1 at 45-46), but according to a memorandum about the

meeting,they "express[ed their] concerns with his performance as a [d]oorman[.]" (ECF No.
144-3 at 57.) They explained that "his demeanor was very lackadaisical[,]" and that he "d[id]
not greet residents properly, d[id] not answer the phone properly and was not following the

[standard operation practices] properly[.]" {Id.) The plaintiff"expressed that he would like the

The plaintiff does not remember the exact date of the meeting. (ECF No. 144-1 at 43.)
2

opportunity to try to change," and management informed him that if his performance did not
improve, he would be moved "to a [p]orter position at the same pay rate." {Id.)

About a month later, on November 11,2016,Parker Towers management,including Mr.
Chraibi, reassigned the plaintiff to a porter position. {Id.\ see also ECF No. 144-3 at 58.) The
plaintiff submitted grievances to his union, stating that his work routine was changed without
sufficient notice, and that Mr. Chraibi harassed him during work. (ECF No. 144-4 at 6). He
claimed that Mr. Chraibi "called him 5 times on the phone[,]" and that the harassment was
ongoing. (ECF No. 144-4 at 28.)

On November 12, 2016,the plaintiff posted the following message on social media:

Life is funny just when u think thing going good u get put back in
that space u don't want to be in he really thing I'm sit back let him
do to me like he do them I'm not them I got street smarts and book
smart he coming for my head I'm coming for your I'm going to see
my guy today he love me I'm 4 and 0 about to be 5and 0 I got
story to tell how street kid clean up his life to be a doorman they
going to eat this up coming for me no I'm coming for uuuuuuu
show u better then I can tell u the media going love my story
smarter then u think home boy[.]
(ECF No.144-4 at 33; ECF No. 144-1 at 54.) The plaintiffs new supervisor reported the post to
the building's management. (ECF No. 110-2 K 29.)

The plaintiff was fired a few days later, on November 18,2016. (ECF No. 144-1 at 53;
ECF No. 144-4 at 5.) According to an internal Parker Towers memorandum,the plaintiff was
terminated because he was "negative and upset" about his new position,"called the [u]nion" to

ask if the reassignment was permitted, and "threaten[ed] management" on social media. (ECF
No. 144-3 at 58.) The plaintiff claims that he was terminated because he was "smart" and was

"show[ing] up" his direct supervisors in front of higher management. (ECF No. 144-1 at 37.)

The plaintiff filed an additional grievance with his union the night he was fired, claiming
the termination was unjust. (ECF No. 144-4 at 7.) Later that month, he filed a claim of

discrimination with the Equal Employment Opportunity Commission (Jd. at 8)claiming that
although there were three other black doormen,the plaintiff was replaced with a "white Latino

male," which demonstrated discrimination on the basis of"race/color/complexion." {Id. at 10.)
LEGAL STANDARD

Summary judgment is appropriate only if the parties' submissions, including deposition
transcripts, affidavits, or other documentation, show that there is "no genuine dispute as to any

material fact," and that the movant is "entitled to judgment as a matter oflaw." Fed. R. Civ. P.
56(a); see also Anderson v. Liberty Lobby, Inc., All U.S. 242,247-48(1986). The movant has
the "burden ofshowing the absence of any genuine dispute as to a material fact." McLee v.
Chrysler Corp., 109 F.3d 130,134(2d Cir. 1997); Tsesarskaya v. City ofNew York,843 F.
Supp. 2d 446,453-54(S.D.N.Y. 2012)("While disputes over facts that might affect the

outcome ofthe suit under the governing law will properly preclude the entry ofsummary

judgment[,][fjactual disputes that are irrelevant or unnecessary will not be counted.")(quoting
Anderson, All U.S. at 248)). "Once the moving party has met this burden, the party opposing
summary judgment must identify specific facts and affirmative evidence that contradict those
offered by the moving party to demonstrate that there is a genuine issue for trial." Ethelberth v.
Choice Sec. Co., 91 F. Supp. 3d 339, 349(E.D.N.Y. 2015)(citing Celotex Corp. v. Catrett, All
U.S. 317, 324(1986)). The non-moving party "may not rely on mere conclusory allegations nor
speculation, but instead must offer some hard evidence showing that its version ofthe events is
not wholly fanciful." i)'yfm/co v. City ofNew York, 132 F.3d 145,149(2d Cir. 1998). In

deciding whether summary judgment is appropriate,the court must resolve all ambiguities and

draw all reasonable inferences in favor of the non-moving party. See Kaytor v. Elec. Boat
Corp.,609 F.3d 537, 545(2d Cir. 2010);Salomon v. Our Lady of Victory Hosp.,514 F.3d 217,
226 <2d Cir. 2008).
DISCUSSION

The plaintiff alleges discrimination and retaliation under both Title VII,42 U.S.C. §

2000e et seq., and 42 U.S.C. § 1981. Claims under each statute are analyzed under the same
standard. See Ahmad v. White Plains Sch. Dist., No. 18-cv-3416, 2019 WL 3202747, at *4

(S.D.N.Y. July 16, 2019)(citing Vill. ofFreeport v. Barrella, 814 F.3d 594,607(2d Cir. 2016)
(noting that "claims ofracial discrimination [are analyzed] identically under Title VII and §

1981.") However,individuals can be held liable only under § 1981 - not Title VII.^ McKinney
V. Tanner, et ai. No. 18-cv-10548(CM),2019 WL 3067116, at *3(S.D.N.Y. July 12,2019)
(citing Lore v. City ofSyracuse,670 F.3d 127,169(2d Cir. 2012). The defendants move for

summary judgment on all ofthe plaintiffs claims.
1.

Discrimmation

The plaintiffs Title VII and § 1981 discrimination claims are dismissed because he
cannot show a primafacie case of discrimination. Disparate treatment claims under Title VII
and § 1981 are analyzed using the McDonnell Douglas burden-shifting framework. BowenHooks V. City ofNew York, 13 F.Supp.3d 179, 209-10(E.D.N.Y. 2014)
(cWmg McDonnell
Douglas Corp. v. Green,411 U.S. 792, 802-03(1973)). Under the framework,the plaintiff

must first establish a primafacie case of discrimination. See id.; see also Holleman v. Art
Crating Inc., No. 12-cv-2719,2014 WL 4907732, at *46(E.D.N.Y. Sept. 30, 2014)-(citations
omitted). Once the plaintiff makes that showing,"the burden of production [shifts] to the

^ The plaintiff alleges only § 1981, and not Title VII, claims against the individual defendant, Mr.
Chraibi.

employer and require[es] the employer to come forward with its justification for the adverse
employment action against the plaintiff." Littlejohn v. City ofNew York, 795 F.3d 297, 307(2d
Cir. 2015). Ifthe employer meets this burden,"the presumption 'drops out ofthe picture'" and

the plaintiff must demonstrate that the employer's explanation is pretextual. Id;see also
Garcia v. Hartford Police Dep't, 706 F.3d 120,127(2d Cir. 2013)(citing Raytheon Co. v.
Hernandez, 540 U.S. 44,50(2003)).

To establish a primafacie case of discrimination, the plaintiff must show that:(1)he is a

member of a protected class;(2)he is qualified for the position;(3)he has suffered an adverse
employment action; and(4)the circumstances give rise to an inference of discrimination. See
McDonnell Douglas Corp., 411 U.S. at 802-04(1973); Littlejohn, 795 F.3d at 307. The parties

do not dispute that the plaintiff, an African-American man,is a member ofa protected cleiss.
(EOF No. 110-2II15.) Nor do they challenge whether the plaintiff was qualified for his
position. The only disputed issues are whether the plaintiff suffered an adverse employment
action and if so, whether it occurred under circumstances giving rise to an inference of
discrimination.

There are two employment actions at issue: the plaintiffs reassignment to the porter

position and the defendants' decision to terminate the plaintiff. The plaintiff undoubtedly
suffered an adverse employment action when he was terminated from hisjob at Parker Towers.
See Brown v. City ofSyracuse, 673 F.3d 141, 150(2d Cir. 2012){q\xoimg Joseph v. Leavitt, 465

F.3d 87,90(2d Cir. 2006)("An adverse employment action is a materially adverse change in
the terms and conditions ofemployment" and must be "more disruptive than a mere
inconvenience or an alteration ofjob responsibilities."); see also Feingold v. New York, 366

F.3d 138,152(2d Cir. 2004)("Examples of materially adverse employment actions include

termination of employment,a demotion evidenced by a decrease in wage or salary, a less

distinguished title, a material loss of benefits, significantly diminished material responsibilities,
or other indices... unique to a particular situation.")(alteration, citation, and internal quotation
marks omitted). The defendants argue that the plaintiff did not suffer an adverse employment
action when they reassigned him to the porter position because he received the same salary, and
his hours did not change. While it is undisputed that the plaintiff received the same salary,

(ECF No. 144-1 at 46), the porter position was an entirely differentjob with a different title.^
Moreover, according to the defendants, they transferred the plaintiff because he performed
poorly as a doorman(ECF No. 144-3 at 58), suggesting that he was demoted.

Despite these adverse employment actions, the plaintiff has not established that the
circumstances give rise to an inference of discrimination. The plaintiff cites the following as
evidence of discrimination: he "didn't get a uniform[,]" he "was wrongfully terminated[,]" and

his "manager was harassing [h]im" by calling him frequently. (ECF No. 144-1 at 32.)
However,the record does not suggest that the defendants did these things because ofthe

plaintiffs race.^ See Caines v. City ofNew York, No. 13-cv-676(VEC),2015 WL 13021892, at
*7(S.D.N.Y. July 8,2015)(citing Bikerstaffv. Vassar Coll., 196 F.3d 435,448(2d Cir. 1998)
(courts should "carefully distinguish between evidence that allows for a reasonable inference of
discrimination and evidence that gives rise to mere speculation and conjecture" at the prima
facie stage)). In fact, the plaintiff agreed in his deposition that he was fired was because the

general manager "didn't like [him]" and "was out to get [him]." (ECF No. 144-1 at 37.) When

^ I disagree with the defendants' argument that the plaintiffs reassignment was not an adverse
employment action because his collective bargaining agreement allowed them to change his position. A
reasonable jury could still conclude that the reassignment was an adverse employment action.
' fact that the defendants replaced the plaintiff with a "white Latino male" is not evidence of
The
discrimination in these circumstances; not only were there other black doorman,the plaintiff does not
provide comparator evidence between himself and his replacement. (ECF No. 144-4 at 2.)

asked whether his reassignment or transfer was because of his race or color, he answered "I
can't answer for how [Mr. Chraibi] thinks." (Jd. at 37-38.)

Because the plaintiff has not established a primafacie case, it is unnecessary to

undertake the burden shifting analysis. Nevertheless, if the plaintiff had made out a primafacie
case, the defendants provide legitimate reasons for their decision to reassign him and later to
fire him. The defendants say that the plaintiff did not do well as a doorman; he was
"lackadaisical," and did not greet residents or answer the phone properly. (ECF No. 144-3 at
57.) They met with the plaintiff to discuss these concerns, and memorialized the meeting in a

memorandum. {Id.) After they assigned him to be a porter, he had a "negative" attitude, and
posted a message on social media that could reasonably be seen as a threat to management. {Id.
at 58.) Moreover,the plaintiffs claim that the defendants fired him because he was "smart" and

was "show[ing] up" his direct supervisors in front of higher management(ECF No. 144-1 at 37)
does not support a claim of discrimination.

The same reasoning applies to the plaintiffs § 1981 discrimination claim against Mr.
Chraibi. As an initial matter, Mr. Chraibi interviewed the plaintiff for the job and recommended
that he be hired,(ECF No. 144-1 at 19; ECF 110-5 If 5), and is thus entitled to an inference that
he did not fire him with discriminatory animus. See Carlton v. Mystic Transp., Inc., 202 F.3d
129,137(2d Cir. 2000)
("When the same actor hires a person already within the protected class,
and then later fires that same person,'it is difficult to impute to her an invidious motivation that
would be inconsistent with the decision to hire.'"(quoting Grady v. Affiliated Cent., Inc., 130

F.3d 553, 560(2d Cir. 1997))(collecting cases). In any event, the plaintiff does not cite any

evidence suggesting that Mr. Chraibi was motivated by racial animus. Indeed,the plaintiff

testified at his deposition that Mr. Chraibi called the plaintiff during work hours because ofthe

plaintiffs "background"- he grew up in the South Bronx -and because Mr. Chraibi did not

like him, not because ofthe plaintiffs race or color.^ (ECF No. 144-1 at 35-36.)
Accordingly, the plaintiffs discrimination claims under Title VII and § 1981 are
dismissed.
II.

Retaliation

The plaintiffs Title VII and § 1981 retaliation claims are dismissed because he did not
engage in protected activity. The McDonnell Douglas burden-shifting framework also governs
retaliation claims under both Title VII and § 1981. Bowen-Hooks, 13 F.Supp.3d at 220(citing

Fincher Deposit. Trust & Clearing Corp.,604 F.3d 712,720(2d Cir. 2010)("Retaliation claims
made under 42 U.S.C. § 1981, like those made under Title VII, are evaluated using a three-step

burden-shifting analysis."). A primafacie case of retaliation requires(1)the plaintiffs

participation in a protected activity known to the defendant;(2)an adverse employment action;
and(3)a causal connection between the protected activity and the adverse employment action.
Kelly V. Howard I. Shapiro &Assocs. Consulting Eng'rs, P.C,716 F.3d 10,14(2d Cir. 2013)

(quoting Lore v. City ofSyracuse,670 F.3d 127, 157(2d Cir. 2012)). The parties do not dispute
that the plaintiff was terminated. (ECF No. 110-2^(32.) Thus,the plaintiff must establish that
he participated in a protected activity, and that there was a causal connection between his
protected activity and his termination.
The plaintiff did not engage in protected activity. "[A]ny action that 'could well

dissuade a reasonable worker from making or supporting a charge of discrimination' may
constitute retaliation." La Grande v. Decrescente Distrib. Co.,370 F. App'x 206,212(2d Cir.

® The plaintiff was asked at his deposition whether "the harassment, the multiple phone calls, was based
on [his] race or color?" The plaintiff responded,"That makes no sense what you just said. What does
phone calls have to do with my race and my color when the general manager already knew my race and
my color?" (ECF No. 144-1 at 35.)

2010)(quoting Burlington N. and Santa Fe Ry. Co. v. White, 548 U.S. 53,57(2006));see also
Littlejohn, 795 F.3d at 317-18 (concluding that even informal protests of discriminatory
employment practices, such as complaints to management, are protected activities under Title

VII). An employee's complaint must make clear that the employee believes he is the victim of

discrimination because ofa protected trait. Kelly, 716 F.3d at 17("[IJmplicit in the requirement
that the employer have been aware ofthe protected activity is the requirement that it
understood, or could reasonably have understood, that the plaintiffs opposition was directed at
conduct prohibited by Title VII."); see also Sharpe v. MCICommc'ns Servs., Inc., 684 F. Supp.

2d 394,406(S.D.N.Y. 2010)("The onus is on the speaker to clarify to the employer that he is

complaining of unfair treatment due to his membership in a protected class and that he is not
complaining merely of unfair treatment generally.")(citation omitted).
The plaintiff made numerous complaints to his union, but never reported any harassment
or adverse employment action due to his race or color. He complained that "his work routine ..
. changed without sufficient notice[.]" (ECF No. 144-4 at 28.) He complained that the general

manager called him five times on the phone. (Id.) He complained that he was unjustly
suspended. (Id. at 30.) Not once did he mention his race or color. Thus, while the defendants
justified the plaintiffs termination because, among other reasons, he "ask[ed] the union if
management was allowed to change his position[,]"(ECF No. 144-3 at 58), the plaintiffs
complaints were based merely on perceived unfair treatment generally - not because of his race.
Because the plaintiff has not pleaded a primafacie case of retaliation, I do not engage in
the remainder ofthe burden shifting analysis. Accordingly, the plaintiffs retaliation claims
under Title VII and § 1981 are dismissed.

10

CONCLUSION

For the reasons explained above, I grant the defendant's motion for summary judgment

on all ofthe plaintiffs claims.^ The Clerk of Court is respectfully directed to enter judgment in
favor of the defendants and close this case.

SO ORDERED.

s/Ann M. Donnelly

Ann'^. Donnelly
United States District Judge

Dated: July 30,2019
Brooklyn, New York

^ The defendants argue that the plaintiff"identified 'the Jack Parker Corporation,' which is merely a
brand name for a family of real estate development and management companies, and is not an entity
against which [the] plaintiff can proceed." (EOF No. 110-3 at 21.) 1 dismiss the plaintiffs complaint
because he did not plead a primafacie case of discrimination or retaliation, and accordingly do not reach
this argument.
II