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

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