Goodman v. The Port Authority of New York and New Jersey et al
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)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
10 Civ. 8352 (RWS)
THE PORT AUTHORITY OF NEW YORK AND
NEW JERSEY, PORT AUTHORITY TRANS
HUDSON CORP., MARTHA GULICK, AND
A P PEA RAN C E S:
iff VINCENT GOODMAN
GEROSA & VANDERWOUDE
770 Farmers Mills
Carmel, NY 10512
Neil VanderWoude, Esq.
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.
Defendants Port Authority of New York and New Jersey
Port Authority Trans-Hudson Corporation
Gulick ("Gulick") and Donald Parente
(" PATH"), Ma
ctively "Defendants" or the "Port Authority
r summary judgment as a matter of law
ral Rule 56 of the Federal Rulers of Ci
Procedures against PIa
Goodman ("Plaintiff" or
For the reasons set forth below, Defendants' motion
for summary judgment is granted in its enti
I. ROCEDURAL HISTORY
this action on November 4, 2010,
claims against the Port Authority Defendants and his
r employers, FJC Security Se
( " Summit"), Guardian Services
an") and defendant Se
I Union, Local 32BJ ("Local 32BJ" or t
under Title VII of t
ghts Act of 1964 ("Title VII"),
the National Transit Systems Security Act
("NTSSA"), the New
York State Human Rights Law ("NYSHRL"), the New Jers
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
25, 2011, Goodman filed an Amended
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
this Court iss
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
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
its Second Amended
against the Port Authority
Defendants under Title
I, NYSHRL, NYCHRL, the NJLAD, the
State Wage and Hour Law,
NJCEPA, the FLSA, the New Jers
Prevailing Wage Law, and alleging conversion, unjust
chment, and intentional infliction of emotional distress.
On June 28, 2013, the Port Authority Defendants filed
submitted on S
I I .
rd and mar
This motion was
ember 11, 2013.
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
en the States of New York and New Jersey with
1921 Compact and subsequently enact
Port Authority operates an
Trade Center ("WTC").
lude the PATH train, which is a wholl
subsidiary of the Port Authority.
between New York and New Jersey and
rports, ports, terminals and the Wor
(N.Y. Unconsol. Laws
time period covered in
January 2004 to Februa
2009, the Port Authority was actively
lved in the rebuilding of the PATH station at t
three successive contractors
to supply fire safety personnel at the temporary PATH WTC
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
r Fire Safety
the contract and hired Goodman in his same
employed him until February 13, 2009.
worked at the Site, monitoring the
The Fire Safety
re Command Panel and
reporting any operational problems with the panel directly to
(Deposition of Vincent Goodman, "Goodman Tr."i at 68
69; Exhibit C to Declaration of Kathleen Gill Miller ("Miller
re Safety Director was to
Goodman's job as Senior
ensure that a
or was at the post to monitor
Fire Command Panel at all t
Parente, "Parente Tr."; at 16.)
sition of Donald
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'
SCS Commc'ns r
360 F.3d 329, 338 (2d Cir. 2004).
determining whether a genuine issue of material fact does exist,
a court must resolve all ambiguities and draw all reasonable
moving party. See Matsushita Elec. Indus.
. v. Zenith Radio Corp., 475 U.S. 574, 587
Gibbs-Alfano v. Burton, 281 F.3d 12, 18
(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
jury or whether it is so one-sided that one party must prevail
Lobby, Inc., 477 U.S.
as a matter of law." Anderson v.
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
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
showing that there is a genuine issue for trial," F.R.C.P.
56(e), as to
element "essential to that party's case, and
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
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)
IV. GOODMAN'S TITLE VII CLAIMS ARE TIME-BARRED OR OTHERWISE
intiff brings T
Ie VII claims for a hostile work
retaliation against t
Defendants for various incidents beginn
, Goodman alleges
Gulick made racially
discriminatory remarks in 2004
reason the rest of us have to pay high taxes"
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
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."
(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
PATH took away his
sk was moved
oor with the same equipment,
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
t Port Aut
Second Circuit has held t
ity must be
NJ, 205 F.3d 62, 64 (2d Cir. 2000).
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
his EEOC charge on June 28, 2010.
Goodman seeks to elude this 180-day requirement by
availing himself of t
y time period, asserting that he
is an external, not internal, employee of the Port Author
Brief, "Opp. Br."; at 17-18
PATH") . )
("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
To the contra
" 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
questionnaire which was not even produced. ?ne correct date for the EEOC
, forma_ly recorded, is June 28, 2010, as Goodman's counsel st
at his deposition.
(Goocirnan Tr. at 513 ("This action was initiated in
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
However, in Ageson, the Court
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
riod applies to Port Authority by virtue of
own status as a government
ies to Port
s not depend on
DeZaio v. Port Au
205 F.3d 62, 64
see also Chin, et al v.
ish a hosti
his or her membersh
The 18o-day t
aims are t
Ie VII claims
r retaliation are both without merit.
aim, the plaintiff must
in a protected class that was so severe or
as to alter the conditions of his or her
and (2) there is a s
of New York
, and Goodman's
In any event, Goodman's T
685 F.3d 135, 146 (2d Cir. 2012)
period is thus appli
ity regardless of charging
ority of New
(2d Cir. 2000)
status or laws of state
r imputing the
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
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
involve health or
Goodman's three alleged instances of hostile work
environment do not rise to the required level of "severe or
First, Gulick's alleged comment to PIa
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,
when Gulick print
See Goodman v. Port
95 F.3d 123, 130 (2d
allegedly race-based incident in 2007,
the official Handbook
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.
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.
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.
Tr. at 530.)
lack hostility, do not
These incidents, whi
constitute physical threats, and did not interfere with
formance, are insufficient as a matter of law
See Alfano v.
10,294 F.3d 365 (2d Cir. 2002); see also Kotcher v. Rosa &
llivan Appliances Ctr.,
In order to establi
ty under Title VII, a plaintiff must show a
or adverse employment act
retaliation based on a
causal connection between the
(2d Cir. 1992).
of retaliation is s
957 F.2d 59, 62
ected activity and the alleged
Proof of causation can be shown
rectly, by showing that the
was followed closely by
scriminatory treatment, or (2) through
other circumstantial evidence such as disparate treatment of
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
traditional principles of but-
Seer e.g., Shah v. New York State Department
between protected act
too large to est
(2d Cir. 2009)
ish but for causation) .
(a one year
retaliatory act is
Goodman bases his Title VII retaliation claim upon the
(1) his desk was moved twice, although to the same
floor with the same equipment,
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.
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.
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.
Parole), 273 F.3d 76, 87 (2d
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"
tangible adverse effect this inc
e failed to
had on the
tions of her
Goodman's Title VII claims are therefore both
V. GOODMAN'S FLSA CLAIMS ARE TIME BARRED AND WITHOUT MERIT
s that the Port Authority Defe
wages and retaliation under t
h Goodman's Title VIr claims, t
barred by the applicable statute of 1
Portal Act provides t
t any suit to en
FLSA claims are t
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
rs after the cause of action accrued, and
FLSA claims are thus barred.
olation extends the FLSA's stat
While a willful
of limitations from two years to t
iled to allege any facts supporting such an
violation" of the
To establish a "will
employee must prove "t
the employer either knew or showed
r the matter of whether its conduct was
e, see 29 U.S.C.
See McLaughlin v.
Co., 486 U.S. 128, 133 (1988).
Unreasonable behavior, if not
reckless, is insufficient to be deemed "willful" under the
486 U.S. at 134.
Goodman offers no support for his conclusory
allegations that the Port Authority Defendants willfully or
FLSA with respect to his unpa
To the contrary, Goodman testified at his depos
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
Goodman to work overtime, including evenings and
weekends, and not charge for it, if Goodman wished to keep
(Goodman Tr. at 585-86.)
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.
v claims did not accrue u:-ltil Goodman had exhausted his
administrative remedies, which were finalized on November 2, 2009.
, 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.
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)).
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
Plaintiff incidentally concedes that this claim is
-barred under the Stability Statute.
are also both t
conversion and unjust enrichment
De p' t
1 97 9 )
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
conversion is three years); Vigilant Ins. Co.
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
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
with respect to conversion actions) .
Auth. of El Paso, 87 N.Y.2d 36, 44 (1995)
conversion claim] runs from the
conversion takes place
discovery or the exercise of diligence to
In any event, both of
("accrual [of a
ims also fail on the
To prove the tort of convers
minimum "an unauthorized assumption
, 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).
Goodman states that he made documents and s
terns in 2004,
y converted by PATH and Port Authori
r their daily
(Goodman Tr. at 571.)
r, fails to show (1) that these aIle
(2) that they contained only his work; or (3)
even that the Port Authority Defendants still use these
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.
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.)
In addition to alleged conversion of Goodman's
intiff also maintains that the Port Authority
Defendants did not pay Goodman overtime despite logs refle
overtime hours and Goodman requesting overtime pay.
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.
In order to make a claim
unjust enrichment, a
plaintiff must prove "(I) the performance of se
(2) the a
ance of the services by the
they are rendered;
ces in good
rson to whom
(3) an exception of compensation there
and (4) a determination of the reasonable value of the services
Moors v. Hall,
532 N.Y.S.2d 412, 414
As with the alleged loss of overt
pay underlying the
conversion claim, Goodman was compensated for all services
accepted by and reported to the FJC, Summit and Guardian
his performance of work and does not present
sufficient allegations to the contrary.
The unjust enrichment
Upon the conclusions set forth above, Defendants' motion
for summary judgment is granted in its entirety.
It is so orde
New York, NY
ROBERT W. SWEET
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