Goodman v. The Port Authority of New York and New Jersey et al

Filing 122

OPINION re: 104 MOTION for Summary Judgment filed by Donald Parente, Port Authority Trans-Hudson Corporation, The Port Authority of New York and New Jersey, Martha Gulick. Upon the conclusions set forth above, Defendants' motion for summary judgment is granted in its entirety. (Signed by Judge Robert W. Sweet on 9/18/2013) (cd)

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~---- .......

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

-------- ---------

-x

GOODMAN,
Plaintiff,
10 Civ. 8352 (RWS)
- against ­
OPINION
THE PORT AUTHORITY OF NEW YORK AND
NEW JERSEY, PORT AUTHORITY TRANS­
HUDSON CORP., MARTHA GULICK, AND
DONALD PERENTE,
Defendants.

A P PEA RAN C E S:

Attorne

iff VINCENT GOODMAN

GEROSA & VANDERWOUDE
770 Farmers Mills
Carmel, NY 10512
By:
Neil VanderWoude, Esq.

Atto
for Defendants PORT AUTHORITY OF
NEW YORK ET AL.
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY
225 Park Avenue South, 13th Floor
New York, NY 1003
Kathleen Gill Miller, Esq.
James M. Begley, Esq.
Isaac M. Rethy, Esq.

Sweet, D.J.

Defendants Port Authority of New York and New Jersey
("Port Authority"),

Port Authority Trans-Hudson Corporation

Gulick ("Gulick") and Donald Parente

(" PATH"), Ma

ctively "Defendants" or the "Port Authority

("Parente" )

r summary judgment as a matter of law

Defendants") move

ral Rule 56 of the Federal Rulers of Ci

pursuant to

Procedures against PIa

iff

I

Goodman ("Plaintiff" or

"Goodman") .

For the reasons set forth below, Defendants' motion
for summary judgment is granted in its enti

I. ROCEDURAL HISTORY
P

Goodman fi
asserti

this action on November 4, 2010,

claims against the Port Authority Defendants and his

r employers, FJC Security Se
Secur

y S

ces, Inc.

Industries, Inc.
Internat

("Gua

ces,

Inc.

("FJC"), Summit

( " Summit"), Guardian Services
an") and defendant Se

ce Employees

I Union, Local 32BJ ("Local 32BJ" or t

under Title VII of t

Civil

"Union")

ghts Act of 1964 ("Title VII"),

the National Transit Systems Security Act

("NTSSA"), the New

York State Human Rights Law ("NYSHRL"), the New Jers
1

Law

--

~~~~-----.~.--

...

~-

----

...

Against Discrimination ("NJLADU),
Law ("NYCHRL U), the Fe

New York City Human Rights

ral Whistleblower Act, the New Jersey
r failure to represent and

Whistleblower Act, and

ft of

services.

25, 2011, Goodman filed an Amended

On
Compla

adding cIa

for unpaid overtime under the Fair Labor

Standards Act ("FLSA U) and New York Labor Law § 232.

On April 12, 2011, Defendant, Local 32BJ, fil
Motion to Di

ss

this Court iss
Di

Amended Complaint.

a

On August 4, 2011,

an Order granting Local 32BJ's Motion to

ss the Amended Complaint in its entirety, and

Goodman leave to replead.

On June 6, 2011, Goodman's claims against Guardian
were sett

and dismiss

On February 29, 2012, this Court

issued an Order granting FJC's Motion to Dismiss in its
entirety, and on April 26, 2012

s Court granted Summit's

motion to dismiss in its entirety.

On March 20, 2012, PIa
Complaint, asserting cla

iff fil

its Second Amended

against the Port Authority
2

Defendants under Title

I, NYSHRL, NYCHRL, the NJLAD, the
State Wage and Hour Law,

NJCEPA, the FLSA, the New Jers
New Je

Prevailing Wage Law, and alleging conversion, unjust

chment, and intentional infliction of emotional distress.

On June 28, 2013, the Port Authority Defendants filed
summary judgment.
submitted on S

I I .

rd and mar

This motion was

ember 11, 2013.

BACKGROUND

The Port Authority is a bi-state

approval of t

United States Congress.

(Ch. 154, Laws of N.Y.,

. 151, Laws of N.J., 1921; 42 U.S. Stat. 174, 1921.)

Pursuant to t
I

created by

en the States of New York and New Jersey with

Compact

1921;

fully

slation,

1921 Compact and subsequently enact
Port Authority operates an

transportation netwo

Trade Center ("WTC").

lude the PATH train, which is a wholl

subsidiary of the Port Authority.

During

rstate

between New York and New Jersey and

rports, ports, terminals and the Wor
These facilities

bi-state

(N.Y. Unconsol. Laws

time period covered in

January 2004 to Februa

§

owned
6861.)

complaint, from

2009, the Port Authority was actively
3

lved in the rebuilding of the PATH station at t
Throughout this

riod,

WTC.

three successive contractors

PATH hi

to supply fire safety personnel at the temporary PATH WTC
Station (

"Site").

These contractors were FJC, who had the

contract from December 2003 until August 16, 2004, Summit, who
replaced FJC until December 16, 2008, and Guardian, who
succeeded Summit on that date and remained through the relevant
period of the complaint.

Each of these three companies employed Goodman as the
Senior Fire Safety Director, where he worked at the Journal
Square Transportation Center ("Journal Square") but went to the
Site to do inspections.

Goodman was first hi

December 2003 as the Senior Fire Safety

by FJC in

rector for the Site.

He worked primarily from his office at Journal Square in Jersey
City, New Jersey.

When Summit took over the contract effect

on August 16, 2004, it hired Goodman as the Sen
rector until December 16, 2008, at which t
awa

r Fire Safety
Guardian was

the contract and hired Goodman in his same

employed him until February 13, 2009.
worked at the Site, monitoring the

city and

The Fire Safety

rectors

re Command Panel and

reporting any operational problems with the panel directly to
Goodman.

(Deposition of Vincent Goodman, "Goodman Tr."i at 68­
4

69; Exhibit C to Declaration of Kathleen Gill Miller ("Miller
Decl.").}

re Safety Director was to

Goodman's job as Senior

ensure that a

re Sa

y Di

or was at the post to monitor

s.

Fire Command Panel at all t
Parente, "Parente Tr."; at 16.)

sition of Donald
Goodman's

Guardian terminat

employed at PATH on February 13, 2009.

III. STANDARD OF REVIEW
Summary judgment is granted only if there is no
genuine issue of material fact and the moving

Y is entitled

to judgment as a matter of law. F.R.C.P. 56(c}; see Celotex
Corp. v. Catrett r 477 U.S. 317, 322-23 (1986)
Inc. v. Herrick CO'

r

i

SCS Commc'ns r

360 F.3d 329, 338 (2d Cir. 2004).

In

determining whether a genuine issue of material fact does exist,
a court must resolve all ambiguities and draw all reasonable
inferences
Co., L

inst

moving party. See Matsushita Elec. Indus.

. v. Zenith Radio Corp., 475 U.S. 574, 587

Gibbs-Alfano v. Burton, 281 F.3d 12, 18

(1986);

(2d Cir.2002). In

addition, courts do not try issues of fact on a motion
summary judgment, but rather, determine "whether
presents a suffic

disagreement to require submiss

r

evidence
to a

jury or whether it is so one-sided that one party must prevail

5

Lobby, Inc., 477 U.S.

as a matter of law." Anderson v.
242, 251-52

(1986).

moving party
that t

s the

itial burden of showing

e, Adickes v. S.H.

are no material facts in di

Kress & Co., 398 U.S. 144, 157

(1970), and can discharge t

s

burden by demonstrating that there is an absence of evidence to
support the nonmoving party's case. Celotex, 477 U.S. at 325.
nonmoving party then must come forward

th "

fic

cts

showing that there is a genuine issue for trial," F.R.C.P.
56(e), as to
on which

element "essential to that party's case, and
party will

the burden of proof at trial."

Celotex, 477 U.S. at 322. "[TJhe non-moving

rty may not rely

simply on conclusory allegations or speculation to avoid summary
judgment,

inst

must offer evidence to show that its

version of the events is not wholly fanciful." Morris v. Lindau,
196 F.3d 102, 109 (2d Cir. 1999)

(quotat

omitt

).

IV. GOODMAN'S TITLE VII CLAIMS ARE TIME-BARRED OR OTHERWISE
INACTIONABLE
intiff brings T
environment

Ie VII claims for a hostile work

retaliation against t

Defendants for various incidents beginn
Specifical

, Goodman alleges

(1) t
6

Port Authority
in 2004.
Gulick made racially

"people Ii

discriminatory remarks in 2004

reason the rest of us have to pay high taxes"
516-20);

you are the
(Goodman Tr. at

(2) that a hostile work environment was created by
she printed a Ku Klux Klan manual on

Gulick in June of 2008

r in a public area of the office, though s

a pr
was

explained

held near a PATH station

research about a rally to

and (3) that Goodman found an article about a convicted Klansman
purportedly named "Gulick"
he later learned that

June 2007, but acknowledges that
name in the article had been falsi

and was not in fact named "Gulick."

ed

(Goodman Tr. at 528 30.)

Goodman also alleges that he was terminated in retaliation for
his complaining about Gulick's printi

of the KKK handbook

June of 2007, all

in support (1) that his

twice, although to t

same

PATH took away his
took over
check

sk was moved

oor with the same equipment,

rking

ss, and (3) that when Guardian

contract, their new procedures required him to
at the desk.

(Goodman Tr. at 531-35.)

As an initial matter, Goodman's Title VII cIa
time-barred.
aga

(2)

t Port Aut

alleged discr

Second Circuit has held t
ity must be
nato

act.

led wi

Dezaio v.

NJ, 205 F.3d 62, 64 (2d Cir. 2000).
7

are

an EEOC charge

in 180 days of the
Port Authority of NY and

Thus, Goodman's alleged

idents, all of which occur

fore December 31, 2008, are

time-barred as having occurred more than 180 days after
Plaintiff fil

his EEOC charge on June 28, 2010.

Goodman seeks to elude this 180-day requirement by
availing himself of t

300

y time period, asserting that he

is an external, not internal, employee of the Port Author
thus that

300-day time

Brief, "Opp. Br."; at 17-18
PATH") . )

riod applies.

y and

(Goodman Opposition

("Goodman was never an employee of

Even if the 300-day time period were applicable and

even if the continuous conduct doctrine were appropriate,
Goodman's EEOC was filed after this deadline.
Goodman is incorrect that the 300-day t
on his external employee status. 2

1

rdless,

period applies

To the contra

sed

the 180-day

Goodman's
" ended with Port Autnority on
13, 2009, and
thus he would have needed to file a
with the EEOC
August 13, 2009
to ~eet the 300
requirement. Goodman incorrectly cites his EEOC as
been filed on December 3, 2009, but this was
an unsigned
questionnaire which was not even produced. ?ne correct date for the EEOC
fil
, forma_ly recorded, is June 28, 2010, as Goodman's counsel st
ed
at his deposition.
(Goocirnan Tr. at 513 ("This action was initiated in
or
of 2009.
The charge was finally filed on [June 28,
2010J .n).) The continuing vio_ation doctrine, even if it were
therefore also does not save Goodman's claim.
Regardless, the 30
dead~ine is not applicable.
Goodman ~istakenly cites Agescn v. Catherwood, 26 N.Y.2d 521, 525 (1970),
to support his use of
300
time
od.
However, in Ageson, the Court
of
held that New York's wage law did not
to the Port Authority
because its personnel policies must be jointly controlled
the two states.
The Court of Appeals did note in dicta that the external operations of the

8

riod applies to Port Authority by virtue of

limitations

,

own status as a government
charging

rty's status.

and New
period

ies to Port

s not depend on

and

DeZaio v. Port Au

205 F.3d 62, 64

see also Chin, et al v.

Port Auth

ronment and
ish a hosti

es
show

(1)

he or

his or her membersh
pervas

nation occurred);

fendant.

New

The 18o-day t
aims are t

Ie VII claims

rred.

stile

r retaliation are both without merit.
work environment
was subj

To

aim, the plaintiff must
to harassment

e of

in a protected class that was so severe or

as to alter the conditions of his or her

and (2) there is a s

rty

of New York

, and Goodman's

In any event, Goodman's T
work

scr

685 F.3d 135, 146 (2d Cir. 2012)

period is thus appli

(18o-day t

ity regardless of charging
re alleged

Jersey,

ority of New

(2d Cir. 2000)

status or laws of state

s

ific basis

r imputing the

oyment;
rassment to

Little v. National Broadcasting Company, Inc.,

210 F. Supp. 2d 330 (S.D.N.Y. 2002)

(citing Tomka v. Seiler,

F.3d 1295, 1305 (2d Cir. 1995)); see also Ha

66

s v. Forklift

t em s , 5 lOU . S. 1 7, 2 1 ( 1 9 9 3) .

Port Authority may be
state laws i f
safety, but Goodman fa.l1s into neither

9

involve health or

~~-----~--~~-----------------

Goodman's three alleged instances of hostile work
environment do not rise to the required level of "severe or
pervasive."

First, Gulick's alleged comment to PIa

iff that

rest of us have to pay high

"people like you are the reason

taxes," is "insufficiently severe or pervasive to support" a
hostile work environment claim and Goodman's personal belief
that Gulick's statement means people of color does not support
an inference of intentional discrimination.
of Authority of NY and NJ,

850 F. Supp. 2d 363, 375 (S.D.N.Y.

2012); see also Holt v. KMI-Continental,

r. 1996).

Second,

when Gulick print

See Goodman v. Port

95 F.3d 123, 130 (2d

allegedly race-based incident in 2007,
the official Handbook

r

KKK, was

indisputably done because Gulick was asked to do research for a
rally near PATH.

Further, after Goodman reported the printing,

PATH's Office of Equal Opportunity ("OEO") organized a meeting
with Gulick and Goodman, where Gulick apologized.

When Goodman

reported to the Manager of the OEO that Gulick threatened
Goodman in this meeting, the Manager advised Goodman that she
would speak to Gulick and give her sensitivity training.

The

Port Authority Defendants thus provided a means for Goodman to
seek assistance and an outlet for mediation and future training.
Third, the isolated

ident of a falsified arti

e about a

Klansman is not attributed to any of the Defendants.
10

(Goodman

Tr. at 530.)

lack hostility, do not

These incidents, whi

constitute physical threats, and did not interfere with
Goodman's work

formance, are insufficient as a matter of law

a hosti

to establi

work environment.

See Alfano v.

10,294 F.3d 365 (2d Cir. 2002); see also Kotcher v. Rosa &

Cost

llivan Appliances Ctr.,

In order to establi

protected act

ty under Title VII, a plaintiff must show a

or adverse employment act
(l)

i

larly

retaliation based on a

causal connection between the

either

(2d Cir. 1992).

of retaliation is s

Goodman's cia
unsupport

957 F.2d 59, 62

ected activity and the alleged

s.

Proof of causation can be shown

rectly, by showing that the

was followed closely by

ected activity

scriminatory treatment, or (2) through

other circumstantial evidence such as disparate treatment of
fellow empl

who engaged in similar conduct.

ty Ed. Of Educ., 232 F.3d 111, 117

Gordon v. N.Y.

(2d Cir. 2000).

plaintiff asserting a retaliation claim under Tit
prove
causation.
Ci

cia

by t

A
VII must

traditional principles of but-

Seer e.g., Shah v. New York State Department

1 Service,

341

App. 670

between protected act
too large to est

(2d Cir. 2009)

ty and

rst al

ish but for causation) .
11

(a one year

retaliatory act is

Goodman bases his Title VII retaliation claim upon the
fact that

(1) his desk was moved twice, although to the same

floor with the same equipment,

(2)

PATH took away his parking

pass, and (3) when Guardian took over the contract, their new
procedures required him to check in at the desk, all allegedly
in retaliation for his complaining about Gulick's printing of
the KKK handbook in June of 2007.

(Goodman Tr. at 531-35.)

These allegations do not support or even allude to retaliatory
animus, or disparate treatment of fellow employees.

Nor is

there a causal connection in this case; the gap between when
Goodman complained about Gulick in April or May of 2007 and his
termination in February of 2009 is over two years.

See McIntyre

v. Longwood Central School District, 2010 U.S. App. LEXIS 11393
(2d Cir. 2010)

(dismissing based on one year time gap and fact

other black males in plaintiff's group received higher raises
than plaintiff) .

Further, Goodman's allegations relating to his desk,
parking pass and checking in protocol demonstrate only standard
activities resulting from a new manager, and regardless do not
alter the conditions or terms of his employment such that they
amount to adverse action under Title VII or could constitute
continuing treatment for the purposes of but-for causation.
12

See

Cir. 2001)

Parole), 273 F.3d 76, 87 (2d

State (Div.

Weeks v. New

loyee who was transferred from

(holding that an

one office to another and physically removed from her first
office was not "retaliated"
"allege

t

terms and

because emplo

tangible adverse effect this inc

e failed to
had on the

oyment") .

tions of her

Goodman's Title VII claims are therefore both
dismis

their entirety.

V. GOODMAN'S FLSA CLAIMS ARE TIME BARRED AND WITHOUT MERIT

Goodman aIle
liable
As

s that the Port Authority Defe

unpaid overt

wages and retaliation under t

h Goodman's Title VIr claims, t

barred by the applicable statute of 1
Portal Act provides t
for

s are

t any suit to en

FLSA.

FLSA claims are t
tat

The Portal-Toa cause of action

id overtime compensation under the FLSA must be

commenced within two
29 U.S.C. § 255(a).
Goodman from Janua

rs after the cause of action accrued.
Port Authority Defendants empl
20, 2004 through

ry 13, 2009.

Goodman did not file a complaint under the FLSA until
25, 2011, over two

d

ruary

rs after the cause of action accrued, and

FLSA claims are thus barred.
13

olation extends the FLSA's stat

While a willful

of limitations from two years to t
Goodman has
extension.

§

255(a),

iled to allege any facts supporting such an
violation" of the

To establish a "will

employee must prove "t

by t

SA,

the employer either knew or showed

r the matter of whether its conduct was

reckless disregard
prohibit

e, see 29 U.S.C.

statute."

See McLaughlin v.

Co., 486 U.S. 128, 133 (1988).

chland Shoe

Unreasonable behavior, if not

reckless, is insufficient to be deemed "willful" under the
statute.

See McLaughlin,

486 U.S. at 134.

Goodman offers no support for his conclusory
allegations that the Port Authority Defendants willfully or
recklessly
overt

sregarded

FLSA with respect to his unpa

To the contrary, Goodman testified at his depos

ion

that he was promptly paid for every weekly time report prepared
by him from November 4, 2007 to December 20, 2008, as well as
all approved overtime that he worked.
Further, Goodman knew
the Port Authority requi
(Goodman Tr. at 103-04.)

(Goodman Tr. at 92-285.)

overtime that was to be cha

prior approval by Parente or Gulick.
Goodman contends that the violation

was nonetheless willful because "Parente made it
expect

to

ear t

Goodman to work overtime, including evenings and
14

t he

weekends, and not charge for it, if Goodman wished to keep
job."

(Goodman Tr. at 585-86.)

s

Goodman also contends that

Parente was aware of unpaid overt

he worked based on personal

logs he kept on his computer, not affiliated wi

PATH or Port

Authority, and e-mails which he allegedly sent to Parente
documenting these logs but which Goodman has failed to produce.
(Goodman Affidavit,

"Goodman

f.";

<Jl<Jl

25,38.)

These allegations are either unsupported or directly
contradicted by Goodman's own testimony, for instance when he
stated in his deposition that he did not del
or e-mail

r hard copies of

logs to Parente and could not recall showing,

sending or discussing any specific daily activity log he created
on his computer with Parente.

(Goodman Tr. at 382.)

Goodman

did subsequently testify that he discussed his time entries on
those logs with Parente 10 or 20 times, but he could not speci
any dates or details of these conversations or produce the logs
themselves.

(Goodman Tr. at 443.)

affidavit does Goodman assert t

s

Regardless, nowhere In
he had actual knowl

that

Parente reviewed these logs or those portions of the logs that
contai

his purported overt

records.

Even taken together

drawing all reasonable inferences in favorable of Plaintiff,
these uns

antiated allegations cannot support the conclusion
15

that Parente knew of or recklessly disregarded Goodman's
personal logs of overtime hours, purposely withheld valid
overtime pay from Plaintiff, or threatened Goodman into not
submitting overtime records.

Nor can Goodman's unpaid overtime claim be saved, as
Plaintiff asserts, under a related-back theory.

Rule 15(c) of

the Federal Rules of Civil Procedure allows an "amendment to a
pleading [to]
when .

relate back to the date of the original pleading

the amendment asserts a claim or defense that arose

out of the conduct, transaction or occurrence set out - or
attempted to be set out - in the original pleading."
newly added action to relate back,

"For a

'the basic claim must have

arisen out of the conduct set forth in the original pleading.'"
Tho Din Tran v. Alphonse Hotel Corp., 281 F.3d 23, 36 (2d Cir.

2002)

(quoting Schiavone v.

Fortune,

477 U.S. 21, 29 (1986)).

Whether a new claim in an amended complaint relates back to the
original complaint lies in the discretion of the district court.
Wilson v. Fairchild Republic Co.

Inc.,

143 F.3d 733, 738

(2d

Cir. 1998).

Goodman alleges that the related-back doctrine is
appropriate since the issue of unpaid overtime was raised in his
16

original complaint, filed
t

4, 2010, and in particular

notice of claim rece

r 7, 2009, which stat

De

Goodman was complaining of overtime.
though,

The initial complaint,

relates to Port Authority Defendants' alleged conversion

Goodman's manuals, and nowhere mentions Defendants'
to pay overtime bas

on

allegations regarding
overtime pay.

rsonal logs or provi

103-06.)

1

s

ts by Parente if Goodman

(CompI.

claims are thus ba

s

re

sted

Goodman's current FLSA

on an "entirely distinct set" of factual

allegations and will not relate back.

Nettis v.

tt,

241

F.3d 186, 193 (2d Cir. 2001).

Even if
Goodman's cla

FLSA claims were not proce

rally barred,

unpaid overtime and retaliation are both

without merit.

Goodman's overtime claim fails
ry are de minimis.

under this t

In Sign v.

ctors in determining whether

should be cons

red de minimi s:

0

(1) the

administrative difficulty of recording
size of

claim in the aggregate; a
17

s damages
of New York,

rcuit considered

5224 F.3d 361 (2d Cir. 2008), the S
three

cause

rwise compensable t
ctical
ional time;
(3) whether the

(2) the

claimants performed the work on a regular basis.

Here,

Id.

Goodman complains of not being paid three hours in the relevant
two year period or $115.98 in overtime.

Specifically, Goodman

alleges that he was owed 2.25 hours of overtime for the week
ending November 8, 2008.

To the contrary, Summit's pay records

show that he was paid for 3 hours of overtime for that week.
(Miller Decl.)

The remaining alleged owed overtime amounts only

to $29.34, and is therefore indisputably de minimis.

(Id. )

Even assuming that the overtime claim was not de

minimis, Goodman's claim is still without merit.

To establish

liability under the FLSA on a claim for unpaid overtime, an
employee must prove the amount of uncompensated work actually
performed and that the employer had actual or constructive
knowledge of that work.
352

Kuebel v. Black & Decker Inc.,

(2d Cir. 20(1); see also Holzapfel v.

F.3d 516, 524

(2d Cir. 1998)

643 F.3d

Town of Newburgh,

145

(an employer's actual or imputed

knowledge that an employee is working is a necessary condition
to find employer "suffers or permits" that work) .

In this case,

Goodman has not provided any records proving he actually
performed the work in question,

including his personal logs that

purportedly document this overtime, or even adequately alleged
that the Port Authority Defendants had actual or constructive
18

knowledge that he was working unpaid overtime hours.3

IV.

See supra

In fact, Goodman does not dispute that the official time

records he submitted to Guardian do not show any unpaid
overtime.

Goodman's retaliation claim under the FLSA is
similarly unsupported.
for any person .

The FLSA provides that it is "unlawful

to discharge or in any other manner

discriminate against any employee because such employee has
filed any complaint or instituted or caused to be instituted any
proceeding under [FLSA]."

29 U.S.C. § 21S(a) (3).

FLSA

retaliation claims are subject to the three-step burden-shifting
framework established by McDonnell Douglas Corp. v. Green, 411
U.S.

792

(1973): a plaintiff alleging retaliation under FLSA

must first establish a prima facie case of retaliation by
showing (1) participation in protected activity known to the
defendant, like the filing of a FLSA lawsuit;

(2) an employment

action disadvantaging the plaintiff; and (3)

a causal connection

Goodman attempts to rely on a palm-in-palm out system and allege that these
records would support his claim for overtime, though he is aware that they
cannot be produced.
However, the palm-in-palm-out system used at Journal
Square was not a time-keeping system, but rather to restrict access to
various buildings to employees.
(Barbara Iorio Deposition, "Iorio Dep."; at
10-11.)
Moreover, the old palm-in-palm-out system crashed in 2006 and all
data was lost.
Further, it is undisputed that Parente and Gulick did not
have access to this system and therefore could not be charged with knowledge
of overtime based on these records.
3

19

between the protected activity and the adverse employment
action.

See also Cruz v. Coach Sotres, Inc.,

(2d Cir. 2000).

202 F.3d 560, 566

The burden then shifts to the employer to show

a legitimate, nondiscriminatory reason for the
action.

Azkour v.

ttle Rest Twelve, Inc.,

loyment

2012 WL 402049

(S.D.N.Y. Feb. 7, 2012).

Here, Goodman fails to establish even the first
requirement: Goodman

ims

was retaliated

whistle blowing in reporting problems with the
Panel and

r

KKK inci

s reporting of

inst for
re Command
, but whistle

blowing is not a protected activity under the FLSA.
Tr. at 531.)

Nor can Goodman's aile

ions that he was

retaliated against for his alleged comp
to his supe

sors survive.

(Goodman

ints of overtime abuses

As a matter of law, the FLSA

applies only to "retaliation for filing formal complaints,
instituting a proceeding, or testifying, but
complaints made to a supervisor."
Inc.,

823 F. Supp. 2d 238, 244

Hyunmi Son v. Reina Bijoux,

(S.D.N.Y. 2011)

FLSA applies only to "retaliation

s not encompass

(court held that

filing formal complaints,

instituting a proceeding, or testifying allege that he was
retaliated against for complaints about unpaid overtime but does

20

sor.").

not encompass complaints made to a s
Goodman's FLSA claims are therefore di

VI.

Both of

s

GOODMAN'S STATE LAW CAUSES OF ACTION AGIANST THE PORT
AUTHORITY DEFENDANTS FAIL FOR LACK OF JURISDICTION AND
REGARDLESS ARE WITHOUT MERIT
New York Courts have consistently he

bringing an action against the Port Autho
comply with the

that a party

y must strictly

ions precedent pursuant to which the Port
s sovereign immunity for a court to have

Authority wa
jurisdiction over

action.

N.Y.S. 2d 571 (1st

See Lyons v. Port Au

' t 1996).

ty, 643

These conditions prece

articulated in N.Y. Unconsol. Law

7107, which re

§

nt are

ires that

all claims under state law against the Port Authority be filed
within one year.

Section 7107 provides in relevant

such action or pro

cuted or maintained

act shall be commenced

ions in

§

s

See Yonkers Contracting

"

Au

N.Y.2d 375, 378-79 (1999)
1

r

thin one year after the cause of action

therefore shall have a
Co. Inc. v. The Port

rt, "any

ty Trans-Hudson Corporation,

93

ng that the one year period of

7107 is "so

rated with the remedy g

to make it an integral part of it, and the condition precedent
to the maintenance of the action at all.").
because the one year requirement is a
21

In addition,
tion precedent

not a mere statute of limitations, tolling provisions are
inapplicable, including CPLR 205(a), which permits a plaintiff
to refile an action within six months after its dismissal.
id.; see also Yonkers Contracting Co.
Trans-Hudson Corp.,
§

669 N.Y.S.2d 671

Inc.

v.

(1999).

See

Port Authority

N.Y. Unconsol. Law

7108 also requires as a condition precedent that "the notice

of claim required by section seven hereof shall be in writing,
sworn to by or on behalf of the claimant."
Fanberg Realty Co.,

475 N.Y.S.2d 854

See Luciano v.

(1st Oep't 1984)

(recognizing that the Notice of Claim requirement is
jurisdictional) .

Goodman has failed to comply with either of these
jurisdictional requirements.

Goodman filed his action on

November 4, 2010, more than one year after his termination and
any of his state law claims accrued.
unsworn Notice of Claim.

Further, he served an

Jurisdiction is thus inappropriate.

Regardless, the Port Authority is not subject to the
state statutes under which Goodman brings his claims.

First,

New York and New Jersey's anti-discrimination laws cannot be
applied against the Port Authority.
Authority of NY and NJ,

205 F.3d 62
22

See, e.g., Dezaio v.

(2d Cir. 2000)

Port

(affirming

scr

that New York and New Jersey's anti

nation laws do not

apply to the Port Authority because si

e state legislation

will not apply to a bi-state agency);

ghtened Independence
New York & New

and Progress, Inc. v. Port Authority
693 F.3d 345, 358 (3d Cir. 2012)

(same).

courts in this circuit have he

Second, dist

ct

the Port Authority is not

subject to New York State's Human

s law, and that t

NYSHRL and NJLAD are not applicable to the Port Authori
e.g.,

See,

Evans v. Port Auth. Of New York & New Jersey, 192 F. Supp.

2d 247, 281-82 (S.D.N.Y. 2002)
respect

ant

scriminat

("Defendants are correct that the
laws of New York

not apply to the Port Aut

se it is an a

by an interstate compact.")
New Jers

New Jersey do

i

Vernon v.

154 F. Supp. 2d 844, 850

created

Port Au

New York &

(S.D.N.Y. 2001)

(the "Port

Authori

, a bi-state entity created by a Compact between New

York

New Jersey, lies outs

anti

scrimination

and New Jersey,
for the

909 F.

New Jersey'sJ

[sJ."); King v. Port Auth. Of New York
. 938

(D.N.J. 1995)

Direct Court

strict of New Jersey held that NJLAD did not apply to

the Port Authority);
Au

New York's [

ty,

ce-Parker v. Delaware

616 F. Supp. 2d 509, 520

(D.N.J. 2009)

Court for the District of New Jersey held
y to bi-state entities).

Goodman's cla
23

ver and Bay
(the District

t NJCEPA does not
under NYHRL,

y had

NYSHRL, NJLAD, and NJCEPA thus cannot proceed even if
in accordance with the juri

fil

irements.

ictional

This likewise applies to Goodman's individual causes of action
against Gul
NYHRL.

k and Parente as aiders and

Since liabil

ttors under the

y cannot be established against the Port

Authority and PATH under this claim, accessorial liability
cannot be found as to the individual Defendants.
48 F. Supp. 2d 280, 293-94

Lieberman,

must

est

accessory Ii

is

1999)

(liabili

d as to the employer/principal before

lity can

found as to an alleged aider and

abettor); Murphy v. ERA Unit
Dep't 1998)

(S.D.N.Y.

See DeWitt v.

Realty,

("It is the employer's

674 N.Y.S.2d 415, 417

rticipation in t

discriminatory practice which serves as the predicate
imposition of Ii

(2d

r the

ility on others for aiding and abetting.").

Similarly, 12 N.Y.C.R.R. 142-2.2, the New Jersey State
Wage and Hour Law and the New Jersey Prevailing Wage Law, as
single state legislations, are inapplicable to the Port
Authority Defendants.

Both the state and

ral courts in New

York have long held that in order to satisfy
language of a Compact, t

"concurred in"

legislatures of both states must do

so "clearly and expressly" by enacting substantial identical
legislation in both states.

See Dezaio,

24

205 F.3d at 65

(adopting

ress intend standard

amendment); see also Malverty v. Wat

r interpreting Compact
t

Commission of New

York Harbor, 71 N.Y.2d 977, 979 (1988); Rose v. port Auth. Of
& New Jersey, 13 F. Supp.

New

516, 523 (S.D.N.Y. 1998)

12 N.Y.C.R.R. § 142-2.2, upon whi
claim,

bases his overt

s not contain any express language governing t

Authority, and thus cannot be appli

See

Aut

to Port Authority or PATH.

v. Catherwood, 26 N.Y.2d 521 (1970)

York State's minimum wage law
employees) .

Port

(holding

New

s not govern wages paid to Port

This

lly applies to

h the

New Jersey State Wage and Hour Law, N.J.A. 34:11-5

the

New Jersey Prevailing Wage Law, N.J.S.A. 34:1156.25
nei

r of which contain

ss language applying

s

.,

se

statutes to the Port Authority.4

Goodman's
in

iction of emotional

enrichment, even if

state law claims,
stress;

(1)

(2) conversion;

were appropriately

1

intentional
(3) unjust

, are without

merit or time-barred under the relevant state statutes.
4 Plaintiff states that he compl~ed with the su~tab~
y statute because all
of his state la>v claims did not accrue u:-ltil Goodman had exhausted his
administrative remedies, which were finalized on November 2, 2009.
(Opp. Br.
at 27-29.)
Plaint ff,
, cites no authority for this proposition, nor
does the suitability statute mention this exception.
Further, even if the
NYSHRL were applicable to PATH and even if its toll
provision did apply,
GoocLrnan still did :-lot file his EEOC charge until June 28, 2010, more than
four months after he >"Quld have been required to commence his action.

25

Goodman's emotional distress claim is governed by a

Gallagher v. Directors Guild

one year statute of limitations.

c., 533 N.Y.S.2d 863, 864 (lst Dep't 1988)

of America r

rst Department held that

entional infliction of emotional

distress is governed by a onepursuant to CPLR § 215(3)).

(the

r statute of limitations

Goodman's Complaint was filed on

November 4, 2010, over one year after his last day of work and
the accrual of his alleged emotional distress claim on February
16, 2009.
t

Plaintiff incidentally concedes that this claim is

-barred under the Stability Statute.

Goodman's
are also both t
of 1

aims

conversion and unjust enrichment

-barred by

tations, whi

applicable three

runs from

(1s t

De p' t

1 97 9 )

statute

date the alleged conversion

or unjust enrichment took place. s
N . Y . S . 2 d 102

(Opp. Sr. at 30.)

Stadtman v. Cambere,

( s tat ute

0

f 1

conversion is three years); Vigilant Ins. Co.

422

ations for

Am. v. Hous.

Plaintiff contends that his conversion and unjust enrichment claims did not
accrue until June of 010, when he discovered that his property was still in
use by PATH.
, Plaintiff cites no authority supporting this notion, nor
does such authority exist.
Plaintiff's claims are thus time-barred by the
relevant statutes, which
inly state that a claim for conversion co~mences
when the wrong is
rated.
See Stadtman v. Cambere, 422 N.Y.S.2d 02
(1st Dep't 1979) (statute of limitations for conversion is three years); see
also General Stencils,
c. v. Chiappa, 18 N. Y.2d 125, 127 (1966) (mere
or lack of discovery of wrong is not sufficient to toll statute of
limitations, which corr~ence
when the wrong is
ed, including
with respect to conversion actions) .
S

26

Auth. of El Paso, 87 N.Y.2d 36, 44 (1995)
e t

conversion claim] runs from the
not

conversion takes place

discovery or the exercise of diligence to
In any event, both of

me

("accrual [of a

ims also fail on the

se

s.
To prove the tort of convers

minimum "an unauthorized assumption
ownersh

, a party must show at
exercise of the right to

over goods belonging to another to the exclusion of

the owner's rights."

23 New York Jur. 2d, Conversion § 51,

Fire Ins. Co. v. Laffer, 245 N.Y. 102 (1927).

citing

Goodman states that he made documents and s
aIle
use a

terns in 2004,

y converted by PATH and Port Authori
er

Goodman,

's termination.

r their daily

(Goodman Tr. at 571.)

r, fails to show (1) that these aIle

were his

documents

(2) that they contained only his work; or (3)

even that the Port Authority Defendants still use these
documents.
documents were]

Tr. at 565 ("Q: Do you know these [the
used? A: That I can't say.").)

Goodman does not provide any details about these aIle
and publications, or their potential worth.

In fact,
d systems
her

admits that he actually took the drawings and designs from the
National Fire Protection Association and PATH for
of these documents.

(Goodman Tr. at 554-555.)
27

creation

In addition to alleged conversion of Goodman's
documents, P

intiff also maintains that the Port Authority

Defendants did not pay Goodman overtime despite logs refle
overtime hours and Goodman requesting overtime pay.

ing

Goodman,

however, has not produced any such logs documenting this aIle
overtime work, nor has he shown any communications
authenticating that his superiors were aware of overt
and refused to pay.

Goodman's conclusory al

ations are thus

to sustain a claim for conversion.

insuffic

In order to make a claim

unjust enrichment, a

plaintiff must prove "(I) the performance of se
ith;

work

(2) the a

ance of the services by the

they are rendered;

ces in good
rson to whom

(3) an exception of compensation there

re;

and (4) a determination of the reasonable value of the services
rende
1988).

"

Moors v. Hall,

532 N.Y.S.2d 412, 414

As with the alleged loss of overt

(2d Dep't

pay underlying the

conversion claim, Goodman was compensated for all services
accepted by and reported to the FJC, Summit and Guardian
concerni

his performance of work and does not present

sufficient allegations to the contrary.
claim there

also fails.

28

The unjust enrichment

IV.

CONCLUSION

Upon the conclusions set forth above, Defendants' motion
for summary judgment is granted in its entirety.
It is so orde

New York, NY
September

I~, 2013

ROBERT W. SWEET
U.S.D.J.

29