Johnston et al v. Apple, Inc.

Filing 37

FIRST MEMORANDUM OF LAW in Opposition re: 32 MOTION to Dismiss Defendant Apple Inc.'s Motion to Dismiss the Second Amended Complaint.. Document filed by Nile Charles, Brian Johnston. (Phillips, William)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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11-CV-3321 (JSR)

BRIAN JOHNSTON and NILE CHARLES,
Plaintiffs,
-againstAPPLE INC. & OMNISCIENT INVESTIGATION CORP.,
Defendants.
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PLAINTIFFS‟ MEMORANDUM OF LAW IN OPPOSITION
TO DEFENDANT APPLE‟S MOTION TO DISMISS

DEREK T. SMITH LAW GROUP, P.C.
Attorneys for Plaintiff
30 Broad Street, 35th Floor
New York, New York 10004
[phone]

William K. Phillips, Esq. (wp0409)
Of Counsel

TABLE OF CONTENTS
PRELIMINARY STATEMENT .................................................................................................... 5
RELEVANT FACTS ...................................................................................................................... 6
LEGAL ARGUMENT .................................................................................................................... 7
I.

THE APPLICABLE STANDARD OF REVIEW .................................................................. 7

II.

PLAINTIFFS‟ SECOND AMENDED COMPLAINT IS LEGALLY SUFFICIENT TO
SUPPORT A CLAIM FOR INTERFERENCE WITH A PROPERTY RIGHT PURSUANT
TO 42 U.S.C. § 1982 .............................................................................................................. 8

a.

Plaintiffs Are Members of a Racial Minority ......................................................................... 9

b.

Defendant APPLE Intended to Discriminate Against Plaintiffs on the Basis of Their Race . 9

c.

The Discrimination Concerned The Purchase of Personal Property .................................... 11

III. PLAINTIFFS‟ SECOND AMENDED COMPLAINT ADEQUATELY PLED A CLAIM
FOR DISCRIMINATION PURSUANT TO NEW YORK STATE EXECUTIVE LAW
§296(2)(a) ............................................................................................................................. 12
IV. PLAINTIFFS‟ SECOND AMENDED COMPLAINT ADEQUATELY PLEAD A CLAIM
FOR DISCRIMINATION PURSUANT TO NEW YORK CITY ADMINISTRATIVE
CODE §8-107 ....................................................................................................................... 14
V.

DEFENDANT APPLE, AS A JOINT EMPLOYER, IS LIABLE FOR THE ACTS OF
DEFENDANT OMNISCIENT‟S SECURITY PERSONNEL ............................................. 15

VI. PLAINTIFFS ARE ENTITLED TO PUNITIVE DAMAGES ............................................ 18
CONCLUSION ............................................................................................................................. 20

2

TABLE OF AUTHORITIES
Cases
Bishop v. Best Buy, Co. Inc., 2010 WL 4159566 (S.D.N.Y. 2010) ............................................. 11
Bishop v. Toys “R” US-NY, LLC, 414 F.Supp.2d 385 (S.D.N.Y. 2006) .................................... 11
Bowling v. 220 W. 42nd St., LLC, 2011 NY Slip Op 31938 (2011) ........................................... 12
Brock v. Superior Care, Inc., 840 F.2d 1054, 1059 (2nd Cir. 1988) ............................................ 16
Bumpus v. New York City Transit Authority, 2008 WL 399147, 3 (N.Y.Sup. 2008) ................. 14
Burgin v. Toys-R-Us-Nytex, Inc., 1999 WL 454302 at 4 (W.D.N.Y. 1999) ............................... 11
Burgin v. Toys-R-Us-Nytex, Inc., 1999 WL 454302, 4 (W.D.N.Y. 1999) .................................. 13
Burgin v. Toys-R-Us-Nytex, Inc., 1999 WL 454302, 4 (W.D.N.Y.,1999) .................................. 13
Clinton's Ditch Co-op Co., Inc. v. NLRB, 778 F.2d 132, 136 (2d Cir. 1985) .............................. 16
Colbert v. Furumoto Realty, Inc., 144 F.Supp.2d 251, 258 (S.D.N.Y.2001) ............................... 19
Dias v. Community Action Project, Inc., 2009 U.S. Dist. LEXIS 17562, 2009 WL 595601, at *6
(E.D.N.Y. Mar. 6, 2009) ........................................................................................................... 16
Diaz v. NBC Universal, Inc., 536 F.Supp.2d 337, 341 (S.D.N.Y. 2008) ....................................... 8
Dowrich v. Aramark Healthcare Support Servs., 2007 WL 2572122, at 8 [E.D.N.Y. 2007]......... 9
Drayton v. Toys "R' Us Inc., 645 F.Supp.2d 149 (S.D.N.Y.,2009) .............................................. 12
Drayton v. Toys "R' Us Inc., 645 F.Supp.2d 149, 153-164 (S.D.N.Y. 2009) ................................ 9
Farrugia v. North Shore Hospital, 820 N.Y.S.2d 718, 2006.) ...................................................... 14
Feacher v. Intercontinental Hotels Group, 563 F.Supp.2d 389, 402 (N.D.N.Y. 2008) .................. 9
Fowler v. Scores Holding Co., 677 F. Supp. 2d 673, 681 (S.D.N.Y. 2009) ................................. 16
Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985) .............................................................. 8
Greene v. Coach, Inc., 218 F. Supp.2d 404 (S.D.N.Y. 2002) ....................................................... 19
Guzman v. City of New York, 2010 WL 4174622, 25 (E.D.N.Y. 2010) ..................................... 14
Halpert v. Manhattan Apartments, Inc., 580 F.3d 86 (2d Cir. 2009) ............................................ 18
Harvey v. Nyrac, Inc., 813 F.Supp. 206, 209 [E.D.N.Y. 1993] ...................................................... 9
Jordan v. Bates Advertising Holdings, Inc., 11 Misc.3d 764, 770, 816 N.Y.S.2d 310,
317 (N.Y.Sup. 2006) ................................................................................................................. 14
Kolstad v. American Dental Ass'n, 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999) ...... 18
Kuper v. Empire Blue Cross & Blue Shield, 2003 WL 359462 (S.D.N.Y. 2003) ....................... 18
Lihli Fashions Corp. v. NRLB, 80 F.3d 743, 747 (2d Cir. 1996) ................................................. 16
Loeffler v. Staten Island University Hosp., 582 F.3d 268, 278 (2d Cir. 2009) ............................ 15
Murray v. Miner, 74 F.3d 402, 404 (2nd Cir. 1996) ...................................................................... 16
Niland v. Buffalo Laborers Welfare Fund, 2007 U.S. Dist. LEXIS 77567, 2007 WL 3047099, at
*6 (W.D.N.Y. Oct. 18, 2007) .................................................................................................... 16
Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333 (2d Cir.1974) ......................................... 11
Perry v. Burger King Corp. 924 F.Supp. 548, 552 (S.D.N.Y.,1996) ........................................... 11
Phillips v. City of New York, 66 A.D.3d 170 (1st Dep‟t. 2009) ................................................... 14
Robinson v. Overseas Military Sales, 21 F.3rd 502 (2d Cir. 1994) ............................................... 18
Semper v. New York Methodist Hosp., 2011 WL 1240551, 3 (E.D.N.Y. 2011) ........................... 8
Shen v. A & P Food Stores, 1995 WL 728416 at 2-3 (E.D.N.Y. 1995) ....................................... 11
Shen v. A&P Food Stores, 1995 WL 728416, 3 (E.D.N.Y.,1995) ........................................... 9, 10
Smith v. United States Army Corps of Eng'rs, 2011 U.S. Dist. LEXIS 54879, 10-11 (W.D.N.Y.
May 20, 2011) ........................................................................................................................... 16

3

Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983) ................................... 18
State Div. of Human Rights on Complaint of Greene v. St. Elizabeth's Hosp., 66 N.Y.2d 684,
687 (1985) ................................................................................................................................. 13
Thompson v. American Eagle Airlines, Inc., 2000 WL 1505972, 11 (S.D.N.Y. 2000) ............... 19
Tolbert v. Queens College, 242 F.3d 58, 77 (2d Cir.2001) .......................................................... 18
Totem Taxi v. N.Y. State Human Rights A. Bd., 65 N.Y.2d 300 (1985) ..................................... 12
Vig v. The New York Hairspray Co., 2009 Slip Op. 6466 (1st Dep‟t 2009) ................................ 14
Wal-Mart Stores East, L.P. v. New York State Div. of Human Rights, 71 A.D.3d 1452, 1453,
897 N.Y.S.2d 348, 349-350 (4th Dept. 2010) .............................................................................. 9
Wal-Mart Stores East, L.P. v. New York State Div. of Human Rights, 71 A.D.3d 1452, 1453,
897 N.Y.S.2d 348, 349-350 (N.Y.A.D. 4 Dept.,2010) ............................................................. 12
Whitehurst v. 230 Fifth, Inc., 2011 WL 3163495, 2-3 (S.D.N.Y. 2011) ....................................... 8
Williams v New York City Hous. Auth., 61 AD3d 62 (1st Dep‟t 2009) ...................................... 14
Young v. Suffolk County, 705 F.Supp.2d 183, 207 (E.D.N.Y.,2010) ............................................ 8
Zimmerman v. Assoc. First Capital Corp., 251 F.3d 376 (2nd Cir. 2001) .................................... 19
Statutes
42 U.S.C. § 1982 ............................................................................................................................. 8
NEW YORK CITY ADMINISTRATIVE CODE §8-107 ........................................................... 14
NEW YORK STATE EXECUTIVE LAW §296(2)(a) ................................................................ 12

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Plaintiffs, BRIAN JOHNSTON and NILE CHARLES (“JOHNSTON & CHARLES”), by
and through their attorneys, DEREK T. SMITH LAW GROUP, P.C., respectfully submit this
Memorandum of Law in Opposition to Defendant APPLE INC.‟s (“APPLE”) Motion to Dismiss
Plaintiffs‟ Second Amended Complaint pursuant to Rule 12(b)(6) and 12(d) of the Federal Rules
of Civil Procedure. Plaintiffs respectfully submit that Defendant APPLE‟s Motion to Dismiss
must be denied in its entirety as a matter of law because Plaintiffs sufficiently pleaded facts that
can be proven at trial to support their claims.
PRELIMINARY STATEMENT
This is an action seeking damages to redress to redress the injuries Plaintiffs JOHNSTON &
CHARLES have suffered as a result of being discriminated against by Defendant APPLE based on
their race (African-American). Specifically, Defendant APPLE ejected Plaintiffs from the Apple
store located at 1981 Broadway in New York City (“Broadway Store”), a place of public
accommodation, based solely on their race.
Defendant APPLE made it clear that Plaintiffs were not welcome due to their race and
cannot evade liability for actions which took place in their store, by their own employees and other
individuals hired by APPLE and unbeknownst to the public labeled as “Independent Contractors.”
To be clear, immediately after Plaintiffs complained to Defendant APPLE‟s Manager that
Defendant OMNISCIENT1 was discriminating against them on the basis of their race, rather
than correct or investigate the discrimination, Defendant APPLE‟s Manager actually asked
Defendant OMNISCIENT‟s Head of Security to call 911 on Plaintiffs. Defendant APPLE‟s
Manager obviously did this in furtherance of the discriminatory acts being committed by Defendant
Defendant OMNISCIENT INVESTIGATION CORP. (“OMNISCIENT”) provides security
personnel at the Broadway Store. However, there is nothing to identify them as OMNISCIENT
employees and not APPLE employees.
1

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OMNISCIENT. Then, at the direction of Defendant APPLE‟s Manager, Plaintiffs were escorted off
the premises by an employee of Defendant APPLE and Defendant OMNISCIENT‟s Security
Personnel. Moreover, Defendant APPLE did not subject similarly situated Caucasian customers to
the same harassment and ejection.
RELEVANT FACTS
On or about December 9, 2010, Plaintiffs visited the Broadway Store to purchase personal
property. Second Amended Complaint (“Complaint”) ¶ 33. After Plaintiffs purchased headphones
in the basement of the Broadway Store, both Plaintiffs proceeded upstairs, and were suddenly
singled out and stopped by Defendant OMNISCIENT‟s Security Personnel, who said to them,
“Either you‟re here to see a Mac Specialist or to purchase something. If you are not doing either
you have to leave the store. And before you say I‟m racially discriminating against you, let me
stop you. I am discriminating against you. I don‟t want „your kind‟ hanging out in the store.”
Complaint ¶¶ 43-44.

Defendant OMNISCIENT‟s Security Personnel, do not wear any

identification labeling them as an entity separate and apart from APPLE and are assumed by the
public to be employees of APPLE.
After Defendant OMNISCIENT‟s Security Personnel made the racist remark, a second
employee of Defendant OMNISCIENT approached Plaintiffs, identified himself as the Head of
Security, and told Plaintiffs, “Now you have to go. If you want to know why, it‟s because I said so.
CONSIDER ME GOD. You have to go.” Complaint ¶ 47.
Plaintiffs were still looking around the store for additional items to purchase and had no
intention of leaving at that point in time. As such, Plaintiffs asked to speak to Defendant
APPLE‟s manager to file a complaint of discrimination, and ultimately found a manager of
Defendant APPLE. Complaint ¶ 48-49. However, before Plaintiffs could explain their situation to

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Defendant APPLE‟s Manager, Defendant OMNISCIENT‟s Head of Security interjected and said, “I
asked them if they needed a specialist.” Due to this interjection and the perceived submission to
Defendant APPLE‟s Manager, it was apparent that Defendant OMNISCIENT‟s Security Personnel
were subordinate to Defendant APPLE‟s Manager. Complaint ¶ 49-50.
Plaintiffs

complained

to

Defendant

APPLE‟s

Manager

about

Defendant

OMNISCIENT‟s racial profiling and pointed out that none of the Caucasian customers were
being approached or asked to leave. Complaint ¶ 51. Shockingly, in order to further harass,
degrade, humiliate, and discriminate against Plaintiffs, Defendant APPLE‟s Manager asked
Defendant OMNISCIENT‟s Head of Security to call 911. Complaint ¶ 53. Defendant APPLE‟s
Manager obviously did this in furtherance of the discriminatory acts being committed by Defendant
OMNISCIENT‟s Security Personnel, as Plaintiffs had just complained to him of discrimination.
Complaint ¶ 54. At the direction of Defendant APPLE‟s Manager, Plaintiffs were then required to
leave the premises, and were escorted by Defendant APPLE‟s employee and Defendant
OMNISCIENT‟s Security Personnel. Complaint ¶ 55.
Further, at no point was there any accusation made against Plaintiffs that they had done
anything improper. In direct contrast, Plaintiffs were merely present in the Broadway Store in
the same manner as other, non-Black customers and were confronted by Defendants and told that
they had to leave and that they were being discriminated against. Complaint ¶ 52.

LEGAL ARGUMENT
I.

THE APPLICABLE STANDARD OF REVIEW
Federal Rules of Civil Procedure 12(b)(6) provides for dismissal of a complaint that fails

to state a claim upon which relief can be granted. The standard of review on a motion to dismiss

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is heavily weighted in favor of the Plaintiff. Diaz v. NBC Universal, Inc., 536 F.Supp.2d 337,
341 (S.D.N.Y. 2008).
“A court considering a 12(b)(6) motion must take factual allegations in the complaint to
be true and draw all reasonable inferences in the plaintiff's favor. A complaint need not contain
detailed factual allegations, but it must contain more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Semper v. New York Methodist Hosp., 2011 WL 1240551,
3 (E.D.N.Y. 2011) (internal citations and quotation marks omitted); See Whitehurst v. 230 Fifth,
Inc., 2011 WL 3163495, 2-3 (S.D.N.Y. 2011)(“In deciding a motion to dismiss pursuant to Rule
12(b)(6), the Court must liberally construe all claims, accept all factual allegations in the
complaint as true, and draw all reasonable inferences in favor of the plaintiff”). The Court‟s
function on a motion to dismiss is “not to weigh the evidence that might be presented at trial but
merely to determine whether the complaint itself is legally sufficient.” Goldman v. Belden, 754
F.2d 1059, 1067 (2d Cir. 1985).

II.

PLAINTIFFS‟ SECOND AMENDED COMPLAINT IS LEGALLY SUFFICIENT
TO SUPPORT A CLAIM FOR INTERFERENCE WITH A PROPERTY RIGHT
PURSUANT TO 42 U.S.C. § 1982
Section 1982 provides that, “[a]ll citizens of the United States shall have the same right,

in every State and Territory, as is enjoyed by white citizens thereof to inherit, purchase, lease,
sell, hold, and convey real and personal property.” 42 U.S.C. § 1982. To state a claim under
§1982, Plaintiffs must allege facts in support of the following elements: (1) they are members of
a racial minority; (2) defendants intended to discriminate on the basis of their race; (3) the
discrimination concerned one or more activities enumerated in §1982, such as the purchase and
lease of property. Young v. Suffolk County, 705 F.Supp.2d 183, 207 (E.D.N.Y.,2010).

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a.

Plaintiffs Are Members of a Racial Minority

Concerning the first element, Defendants do not dispute that Plaintiffs are members of a
racial minority (African-American).
b.

Defendant APPLE Intended to Discriminate Against Plaintiffs on the Basis
of Their Race

With regard to the second element, Plaintiffs must allege that Defendants‟ actions were
purposefully discriminatory and racially motivated, Shen v. A&P Food Stores, 1995 WL 728416,
3 (E.D.N.Y.,1995), and may “rely on direct or circumstantial evidence” to demonstrate
purposeful discrimination. Id. at 3. “Moreover, Plaintiffs may establish that they were subject to
racial discrimination through any evidence logically supporting an inference of that intent.” Id. at
3 (quoting Harvey v. Nyrac, Inc., 813 F.Supp. 206, 209 [E.D.N.Y. 1993]).
One method by which Plaintiffs can establish a prima facie case of discrimination is to
show that they were treated differently than similarly situated individuals of another race.
Feacher v. Intercontinental Hotels Group, 563 F.Supp.2d 389, 402 (N.D.N.Y. 2008); See
Drayton v. Toys "R' Us Inc., 645 F.Supp.2d 149, 153-164 (S.D.N.Y. 2009)(quoting Dowrich v.
Aramark Healthcare Support Servs., 2007 WL 2572122, at 8 [E.D.N.Y. 2007])(an “inference of
discrimination arises when [an] individual of one race [is] treated less favorably than those of
another race who are similarly situated”); Wal-Mart Stores East, L.P. v. New York State Div. of
Human Rights, 71 A.D.3d 1452, 1453, 897 N.Y.S.2d 348, 349-350 (4th Dept. 2010)(“By
“establishing that [an employee of Defendant] stopped greeting customers and asked the
[Plaintiff] for a receipt when she left the store but that he did not ask Caucasian customers for
receipts, . . . the [Plaintiff] met her burden of demonstrating unlawful discrimination by the
employee”).

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Here, Plaintiffs were lawfully present inside the Broadway Store for the sole purpose of
purchasing personal property, when they were suddenly singled out and stopped by Defendant
OMNISCIENT‟s Security Personnel, who told them to leave the store and even said, “before
you say I‟m racially discriminating against you, let me stop you. I am discriminating
against you. I don‟t want „your kind‟ hanging out in the store.”
As a result of this blatantly racist remark, Plaintiffs immediately complained to Defendant
APPLE‟s Manager about Defendant OMNISCIENT‟s racial profiling and even pointed out that
none of the Caucasian customers were being approached or asked to leave. Plaintiffs complained
that they were being treated differently than similarly situated Caucasian customers. Caucasian
customers in the immediate vicinity to Plaintiffs were not harassed by any security, nor were they
told that they must leave.
However, Defendant APPLE‟s Manager did absolutely nothing in response to
Plaintiffs‟ complaint of discrimination, and instead further harassed, degraded, humiliated,
and discriminated against Plaintiffs, by asking Defendant OMNISCIENT‟s Head of Security
to call 911. Defendant APPLE‟s Manager obviously did this in furtherance of the discriminatory
acts being committed by Defendant OMNISCIENT‟s Security Personnel, as Plaintiffs had just
complained to him of discrimination. At the direction of Defendant APPLE‟s Manager, Plaintiffs
were then required to leave the premises, and were escorted by Defendant APPLE‟s employee and
Defendant OMNISCIENT‟s Security Personnel.
Furthermore, “the doctrine of respondeat superior applies to claims where managementlevel employees are implicated.” Shen v. A&P Food Stores, 1995 WL 728416, 3
(E.D.N.Y.,1995)(emphasis in original). Since Defendant APPLE‟s Manager was obviously a
managerial-level employee, the doctrine of respondeat superior most definitely applies to Defendant

10

APPLE concerning Plaintiffs‟ Section 1982 claim.
c.

The Discrimination Concerned The Purchase of Personal Property

With respect to the third element, “[s]ection 1982 has been interpreted to include a
somewhat broad definition of „property.‟”

Perry v. Burger King Corp. 924 F.Supp. 548,

552 (S.D.N.Y.,1996). In Olzman v. Lake Hills Swim Club, Inc., 495 F.2d 1333 (2d Cir.1974),
the court held that it was “reasonable to characterize the freedom of blacks to come and go . . . as
sufficiently pertaining to a condition of property to be a right capable of being held under §
1982.” Id. at 1339; See Burgin v. Toys-R-Us-Nytex, Inc., 1999 WL 454302 at 4 (W.D.N.Y.
1999) (claim stated under Section 1982 where cashier refused to complete sale and had plaintiff
escorted from store); Shen v. A & P Food Stores, 1995 WL 728416 at 2-3 (E.D.N.Y. 1995)
(claim stated under section 1982 where employees refused to sell apple juice to plaintiffs).
Lastly, Defendants incorrectly rely on Bishop v. Best Buy, Co. Inc., 2010 WL 4159566
(S.D.N.Y. 2010) in support of their argument that Plaintiffs‟ Second Amended Complaint fails to
allege any interference with a property right. In Bishop, employees of Best Buy stopped the
plaintiff and asked to see a sales receipt as he was exiting the store. When the plaintiff declined
to do so, he was detained by the Best Buy employees and was not allowed to leave until he
presented his sales receipt. Id. However, the Best Buy employees were actually doing the
opposite of Defendant APPLE‟s Manager – the Best Buy employees were preventing the
plaintiff from leaving the store, not denying him access to the store.
As the Court held in Bishop v. Toys “R” US-NY, LLC, 414 F.Supp.2d 385 (S.D.N.Y.
2006), a previous action brought by the same plaintiff under the same statutes, “it is doubtful that
plaintiff could claim any interest in the „property‟ of the store” since the plaintiff “was not denied
access to the store.” Id. at 395.

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This is very different from the case at hand, where Defendant APPLE prevented Plaintiffs
from continuing to shop at the Broadway Store. Here, Plaintiffs are long time customers of the
Broadway Store. At the time Plaintiffs were ordered to leave the store, Plaintiffs were still
looking around the store and had no intention of leaving at that point in time. Thus, Defendant
APPLE clearly interfered with Plaintiffs‟ right to purchase personal property because of their
race by removing them from the location where the personal property could be purchased.

III.

PLAINTIFFS‟ SECOND AMENDED COMPLAINT ADEQUATELY PLED A
CLAIM FOR DISCRIMINATION PURSUANT TO NEW YORK STATE
EXECUTIVE LAW §296(2)(a)
A claim of discrimination pursuant to New York State Human Rights Law (“NYSHRL”)

section prohibiting racial discrimination in places of public accommodation is subject to the
same analysis as claim of discrimination under federal law. See Drayton v. Toys "R' Us Inc., 645
F.Supp.2d 149 (S.D.N.Y.,2009).
While it is true that an employer cannot be held liable for an employee‟s discriminatory
acts unless the employer became a part to the act by encouraging, condoning or approving it,
Totem Taxi v. N.Y. State Human Rights A. Bd., 65 N.Y.2d 300 (1985), “an employer’s
calculated inaction in response to discriminatory conduct may, as readily as affirmative conduct,
indicate condonation.” Wal-Mart Stores East, L.P. v. New York State Div. of Human Rights, 71
A.D.3d 1452, 1453, 897 N.Y.S.2d 348, 349-350 (N.Y.A.D. 4 Dept.,2010) (internal citations and
quotation marks omitted)(emphasis added); See also Bowling v. 220 W. 42nd St., LLC, 2011
NY Slip Op 31938 (2011) (holding “[i]f an employer fails even to discipline an employee in
response to that employee‟s discriminatory conduct, the employer may be found to have
condoned such improper conduct”); State Div. of Human Rights on Complaint of Greene v. St.

12

Elizabeth's Hosp., 66 N.Y.2d 684, 687 (1985) (“Condonation, which may sufficiently implicate
an employer in the discriminatory acts of its employee to constitute a basis for employer liability
under the Human Rights Law, contemplates a knowing, after-the-fact forgiveness or acceptance
of an offense.”).
In the Wal-Mart case, the court found that the employer condoned the discriminatory acts
of its employee against a customer by failing to discipline the employee for such acts. Wal-Mart,
71 A.D.3d at 1453.

This is almost identical to our case, where Plaintiffs brought the

discrimination to the attention of Defendant APPLE‟s Manager, who did absolutely nothing in
response, and instead, participated in the discrimination by asking Defendant OMNISCIENT to
call 911 and by helping to escort Plaintiffs out of the store.
As the court stated in Burgin v. Toys-R-Us-Nytex, Inc., 1999 WL 454302, 4 (W.D.N.Y.
1999), “the instant circumstances differ substantially from those in Totem Taxi in that [the
employee] was not simply one of multitudinous cabbies for whose racist behavior the employer
took immediate and public responsibility, but rather, given that [the employee] was the only
Manager present at the time and that no statement, explanation, or apology regarding this
incident has been issued by Defendant, it is impossible to discern from the facts alleged whether
she acted out of personal animosity against African-Americans or pursuant to a discriminatory
company-wide policy or practice. Given Doe‟s alleged authority and actions, the state law claim
will not be dismissed at this time.” Burgin v. Toys-R-Us-Nytex, Inc., 1999 WL 454302, 4
(W.D.N.Y.,1999).
Defendant APPLE‟s Manager not only condoned Defendant OMNISCIENT‟s acts, but also
participated in the discrimination by removing Plaintiffs from the store due to racial animus. As
such, Defendant APPLE is liable for the race-based discrimination under the NYSHRL.

13

IV.

PLAINTIFFS‟ SECOND AMENDED COMPLAINT ADEQUATELY PLEAD A
CLAIM FOR DISCRIMINATION PURSUANT TO NEW YORK CITY
ADMINISTRATIVE CODE §8-107
New York City‟s 2005 Local Civil Rights Restoration Act amended the New York City

Human Rights Law (“NYCHRL”) so that its construction would be more expansive and remedial
than, and independent of, its federal and state counterparts. “The New York City Human Rights
Law was intended to be more protective than the state and federal counterpart.” Williams v New
York City Hous. Auth., 61 AD3d 62 (1st Dep‟t 2009) (quoting Farrugia v. North Shore Hospital,
820 N.Y.S.2d 718, 2006.)
In fact, “[t]he legislative history contemplates that the Law be independently construed
with the aim of making it the most progressive in the nation.” Bumpus v. New York City Transit
Authority, 2008 WL 399147, 3 (N.Y.Sup. 2008). “[I]n enacting the more protective Human
Rights Law, the New York City Council has exercised a clear policy choice which this Court is
bound to honor [. . .]. Thus, the case law that has developed in interpreting both the [state and
federal anti-discrimination statutes] should merely serve as a base for the New York City Human
Rights Law, not its ceiling.” Jordan v. Bates Advertising Holdings, Inc., 11 Misc.3d 764, 770,
816 N.Y.S.2d 310, 317 (N.Y.Sup. 2006). See also Guzman v. City of New York, 2010 WL
4174622, 25 (E.D.N.Y. 2010)(internal citations and quotations omitted)(“courts have recently
determined that claims under NYCHRL require an independent liberal construction and are no
longer co-extensive with its federal counterparts.”); See also Phillips v. City of New York, 66
A.D.3d 170 (1st Dep‟t. 2009); Vig v. The New York Hairspray Co., 2009 Slip Op. 6466 (1st
Dep‟t 2009).

14

Moreover, the Second Circuit has completely endorsed the holdings of the
aforementioned cases. See, Loeffler v. Staten Island University Hosp., 582 F.3d 268, 278 (2d
Cir. 2009)(internal citations and quotation marks omitted)(emhasis in original)(The Restoration
Act “amended the City HRL in a variety of ways, including by confirming the legislative intent
to abolish „parallelism‟ between the City HRL and federal and state anti–discrimination law:
The provisions of this [ ] title shall be construed liberally for the accomplishment of the uniquely
broad and remedial purposes thereof, regardless of whether federal or New York State civil and
human rights laws, including those laws with provisions comparably–worded to provisions of
this title, have been so construed. There is now a one–way ratchet: Interpretations of New York
state or federal statutes with similar wording may be used to aid in interpretation of New York
City Human Rights Law, viewing similarly worded provisions of federal and state civil rights
laws as a floor below which the City‟s Human Rights law cannot fall”).
In light of the Restoration Act, the pleading standard under the New York City Human
Rights Law is more expansive than federal or state law. Under this more lenient and remedial
standard, Plaintiffs have cleared their pleading burden by an even greater margin.

V.

DEFENDANT APPLE, AS A JOINT EMPLOYER, IS LIABLE FOR THE ACTS
OF DEFENDANT OMNISCIENT‟S SECURITY PERSONNEL
Irrespective of the discriminatory acts of its own Manager, Defendant APPLE is

nonetheless liable for the discrimination by Defendant OMNISCIENT‟s Security Personnel
under 42 U.S.C. § 1982, New York State Human Rights Law, and the New York City Human
Rights Law as a joint employer. In situations where two employers are alleged, it is often
determined that a joint employer relationship exists. “[T]he determination of whether [someone]
is an employee or an independent contractor is a question of law, while the existence and degree

15

of the legal factors to be considered are questions of fact.” Smith v. United States Army Corps
of Eng'rs, 2011 U.S. Dist. LEXIS 54879, 10-11 (W.D.N.Y. May 20, 2011) (quoting Brock v.
Superior Care, Inc., 840 F.2d 1054, 1059 (2nd Cir. 1988)).
In joint employer situations, control is also the key to determining whether the
employment relationship exists. Murray v. Miner, 74 F.3d 402, 404 (2nd Cir. 1996). Because of
the inherent questions of fact, whether an employment relationship exists “cannot be decided on
a motion to dismiss.” Fowler v. Scores Holding Co., 677 F. Supp. 2d 673, 681 (S.D.N.Y. 2009)
(citing Lihli Fashions Corp. v. NRLB, 80 F.3d 743, 747 (2d Cir. 1996); Clinton's Ditch Co-op
Co., Inc. v. NLRB, 778 F.2d 132, 136 (2d Cir. 1985); Dias v. Community Action Project, Inc.,
2009 U.S. Dist. LEXIS 17562, 2009 WL 595601, at *6 (E.D.N.Y. Mar. 6, 2009); Niland v.
Buffalo Laborers Welfare Fund, 2007 U.S. Dist. LEXIS 77567, 2007 WL 3047099, at *6
(W.D.N.Y. Oct. 18, 2007)).
Here, Plaintiffs have alleged in their Second Amended Complaint that an employment
relationship exists between Defendant APPLE and Defendant OMNISCIENT‟s Security
Personnel. Defendant APPLE contracted with Defendant OMNISCIENT to provide “Security
Personnel” for the purpose of securing the premises at the Broadway Store in order to prevent
loss from theft or other illegal actions. Complaint ¶13.

Defendant OMNISCIENT‟s Security

Personnel have apparent authority to act on behalf of Defendant APPLE, and further, this
apparent authority is communicated to the general public by Defendant APPLE permitting
Defendant OMNISCIENT‟s Security Personnel to work within the Broadway Store without
restriction, and to speak on its behalf, as was the case in the situation detailed herein. Complaint
¶15.

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Moreover, as alleged in the Second Amended Complaint, Defendant APPLE, by contract,
requires that Defendant OMNISCIENT‟s Security Personnel report all inappropriate or
suspicious behavior to Defendant APPLE, as well as perform services under a standard of
behavior or process set forth by Defendant APPLE. Complaint ¶¶17-18.

Defendant

OMNISCIENT‟s Security Personnel even sometimes act as a liaison for Defendant APPLE with
local law enforcement as directed by Defendant APPLE. Complaint ¶19. In these ways and
others, Defendant APPLE controls the means of carrying out the tasks required of Defendant
OMNISCIENT through contractual obligation, standards and procedures, provided in writing
and through oversight by Defendant APPLE‟s employees. Complaint ¶27.

Defendant

OMNISCIENT‟s Security Personnel act both with apparent and limited actual authority, on
behalf of Defendant APPLE, as controlled by Defendant APPLE‟s personnel. Complaint ¶28.
The relationship which is created between Defendant APPLE and Defendant OMNISCIENT‟s
Security Personnel is one of an employer to employee. Complaint ¶29.
Thus, the actions alleged to have taken by Defendant OMNISCIENT‟s Security
Personnel would also be imputed to Defendant APPLE. Reading the Complaint in the light most
favorable to Plaintiffs, the allegations are sufficient to present a plausible argument that
Defendant APPLE acted as Defendant OMNISCIENT Security Personnel‟s employer and acted
through Defendant OMNISCIENT to discriminate against Plaintiffs.
Additionally, the Second Circuit has held that employers can even be held
responsible for an independent contractor‟s actions. The prohibition against discrimination
“applies regardless of whether an employer uses its employees . . . or whether it uses
intermediaries, such as independent contractors, to fill that role . . . If a company gives an
individual authority to . . . [act] . . . on the company‟s behalf, then the company may be

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held liable if that individual improperly discriminates . . .” Halpert v. Manhattan Apartments,
Inc., 580 F.3d 86 (2d Cir. 2009). This issue was also addressed in Robinson v. Overseas Military
Sales, 21 F.3rd 502 (2d Cir. 1994), where the court held that “[a]n employer … can personally be
liable for discrimination by an independent contractor … who acts for the employer.”
Therefore, it doesn‟t matter whether Defendant OMNISCIENT‟s Security Personnel were
independent contractors or not – what matters is that they acted for Defendant APPLE and made
decisions on Defendant APPLE‟s behalf relating to Plaintiffs.

Therefore, Defendant APPLE is

nonetheless liable for the discrimination by Defendant OMNISCIENT‟s Security Personnel
under 42 U.S.C. § 1982, New York State Human Rights Law, and the New York City Human
Rights Law as a joint employer.

As stated, Defendant APPLE‟s motion to dismiss as to this

issue should be denied.

VI.

PLAINTIFFS ARE ENTITLED TO PUNITIVE DAMAGES
Punitive damages have been awarded in a variety of discrimination cases based on the

general reprehensible nature of the discriminatory conduct. “Punitive damages may be awarded
for a civil rights claim if „the defendant's conduct is shown to be motivated by evil motive or
intent, or when it involves reckless or callous indifference to the federally protected rights of
others.’ ” Tolbert v. Queens College, 242 F.3d 58, 77 (2d Cir.2001) (quoting Smith v. Wade,
461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983)) (emphasis in original); See also,
Kolstad v. American Dental Ass'n, 527 U.S. 526, 119 S.Ct. 2118, 144 L.Ed.2d 494 (1999)
(holding that “the terms „malice‟ and „reckless‟ ultimately focus on the actor‟s state of mind,”
making a showing of egregious or outrageous discrimination unnecessary); Kuper v. Empire
Blue Cross & Blue Shield, 2003 WL 359462 (S.D.N.Y. 2003) (denying employer‟s motion for

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judgment as a matter of law as to punitive damages award where employer had written
antidiscrimination policy but did not present evidence that it actively trained employees or
enforced the policy); Greene v. Coach, Inc., 218 F. Supp.2d 404 (S.D.N.Y. 2002) (denying
employer‟s motion to dismiss punitive damage claim even though the employer had a written
antidiscrimination policy and conducted numerous training programs because it failed to provide
evidence that managers at issue had undergone training); Zimmerman v. Assoc. First Capital
Corp., 251 F.3d 376 (2nd Cir. 2001) (punitive damage issue was properly submitted to the jury
even though supervisor accused of discrimination testified that he received training in “equal
opportunity” because such testimony did not prove the existence of an anti-discrimination policy,
and the employer presented no evidence of implementation or enforcement of any such policy).
As the court in Colbert v. Furumoto Realty, Inc., 144 F.Supp.2d 251, 258
(S.D.N.Y.2001) stated, “we fail to see how racial discrimination is not sufficiently
reprehensible to warrant a punitive damages award.”
Lastly, under the NYCHRL, there is no absolute defense to punitive damages. Rather,
the NYCHRL sets out a set of criteria which “shall be considered in mitigation of the amount of .
. . punitive damages which may be imposed . . . .” 8–107(13)(e). As the Thompson court
observed, “In view of the explicit language that these factors are only to be considered as factors
in mitigating punitive damages, they are not a complete defense sufficient to strike the claim
for punitive damages [. . .]. Thompson v. American Eagle Airlines, Inc., 2000 WL 1505972, 11
(S.D.N.Y. 2000) (emphasis added).
As Plaintiffs alleged, Defendant APPLE‟s Manager not only condoned Defendant
OMNISCIENT‟s discriminatory acts, but further participated in removing Plaintiffs from the store

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due to racial animus.

Defendant APPLE‟s manager thus intentionally discriminated against

Plaintiffs, Complaint ¶59, making an award of punitive damages appropriate.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court deny Defendant
APPLE‟s Motion to Dismiss in its entirety, and order such other and further relief as this Court
may deem just and proper.

Dated: New York, New York
August 18, 2011
DEREK T. SMITH LAW GROUP, P.C.
Attorneys for Plaintiff

By:

To:

____________/s/__________________
William K. Phillips, Esq. (wp0409)
Of Counsel
30 Broad Street, 35th Floor
New York, New York 10004
[phone]

Thomas M. Crispi, Esq.
Kellen G. Ressmeyer, Esq.
SCHIFF HARDIN LLP
Attorneys for Apple Inc.
666 Fifth Avenue, 17th Floor
New York, NY 10103
212-753-5000
David L. Metzger, Esq.
LEWIS JOHS AVALLONE AVILES, LLP
Attorneys for Omniscient Investigation Corp.
61 Broadway, Suite 2000
New York, NY 10006
212-233-7195

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