Crean et al v. 125 West 76th Street Realty Corp. et al

Filing 59

MEMORANDUM OPINION AND ORDER re: 11 MOTION to Dismiss Complaint filed by 125 West 76th Street Realty Corp.: Defendants' motion for summary judgment is granted in its entirety. The Clerk of the Court is respectfully requested t o enter judgment in favor of Defendants and close the case. The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith. Accordingly, any application to proceed on appeal in forma pauperis is denied. See Coppedge v. United States, 369 U.S. 438, 444 (1962). This Memorandum Order and Opinion resolves docket entry number 11. (Signed by Judge Laura Taylor Swain on 1/17/2017) Copies Mailed By Chambers. (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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THOMAS J. CREAN and SUSAN CREAN,
Plaintiffs,
-v-

No. 15CV3814-LTS-HBP

125 WEST 76TH STREET REALTY CORP.
et al.,
Defendants.
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MEMORANDUM OPINION AND ORDER
Pro se plaintiffs Thomas J. Crean (“TC”) and Susan Crean (“SC” and, together
with TC, “Plaintiffs”) commenced this action against Defendants 125 W. 76 Realty Corp.1 (the
“Co-op”) and Alyson Reim Friedman (“Friedman” and, together with the Co-op, “Defendants”),
seeking damages pursuant to Title VII of the Civil Rights Act (“Title VII”), the Age
Discrimination in Employment Act (the “ADEA”), Americans with Disabilities Act of 1990 (the
“ADA”), New York State Human Rights Law (“NYSHRL”), and New York City Human Rights
Law (“NYCHRL”) for alleged employment discrimination.
On October 5, 2015, Defendants filed a motion, which was accompanied by a
number of declarations and evidentiary submissions, to dismiss the Complaint. On October 8,
2015, the Court issued an order converting the motion into one for summary judgment based on
Defendants’ reliance on materials outside the Complaint, and directed the parties to file

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Plaintiffs refer to this Defendant as 125 West 76th Street Realty Corp. in their
Complaint.
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statements pursuant to Local Rule 56.1 and evidentiary submissions with their argumentative
briefing. (Docket entry no. 20.) The parties have done so, and Plaintiffs also filed a number of
additional submissions.
The Court has subject matter jurisdiction of the case pursuant to 28 U.S.C.
§§ 1331 and 1367.
The Court has reviewed the parties’ submissions carefully. For the following
reasons, Defendants’ motion for summary judgment is granted.

BACKGROUND
Except as otherwise noted, the following facts are undisputed.2 The Co-op is an
entity that owns a single, residential cooperative apartment building (the “Building”) located at
125 West 76th Street, New York, New York. (Defs.’ 56.1 ¶ 1.) Defendant Friedman was, at all
relevant times, the President of the Co-op. (Id. ¶ 4.)
The Co-op employed TC as the superintendent of the Building from 2001 to
2014. (Id. ¶ 5.) SC is TC’s wife. (Id. ¶ 6.) Defendants never considered SC to be an employee
of the Co-op. (See id. ¶ 7.) Plaintiffs allege that, beginning at the time TC was originally hired,
he was directed to submit certain reports to the Building’s management by email, and that the
manager told him to have SC type the reports if TC was unable to type the reports. (See Pls.’
Resp. 56.1 at 8-9.) SC alleges that she typed all of the reports over the years of TC’s
employment and asserts that, by virtue of that work, she was a “‘Quasi-Constructive’
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The facts recited are drawn primarily from the parties’ statements pursuant to
S.D.N.Y. Local Civil Rule 56.1, or from evidence as to which there is no nonconclusory factual proffer. Citations to Defendants’ Local Civil Rule 56.1 Statement
(“Defs.’ 56.1,” docket entry no. 23) and Plaintiffs’ statement in opposition (“Pls.’
Resp. 56.1,” docket entry no. 35-1 at ECF p. 28) incorporate by reference the
parties’ citations to the underlying evidentiary submissions.
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uncompensated employee” of the Co-op. (See id.) SC was never compensated for such work,
and SC’s handwritten note on an EEOC document attached to the Complaint states “I am Not an
Employee of Defendant & Never Was Susan Crean.” (Compl. at ECF p. 13; see also Pls.’ Resp.
56.1 at 8.) The Co-op terminated TC’s employment on November 5, 2014. (Defs.’ 56.1 ¶ 8.)
Defendants have proffered a declaration that the Co-op never had more than three
employees in 2014 or 2015; tax documentation consistent with that representation is attached to
the declaration. (Elgar Decl. Ex. 1.) Plaintiffs assert that “[t]he Corporation IS a ‘MULTIEMPLOYER’ with at least, 20 or more ‘contracted’ and ‘sub-contracted’ employees rotated on a
REGULAR Full-time, Part-time (or at-will) basis. They are employees whether, or not, they
have been in IRS classified status: ‘exempt’ or “‘non-exempt.’ All these are regular contracted
employees that are (and have been) retained by the Corporation for many years.” (Pls. Resp.
56.1 at 2.) In this connection, Plaintiffs assert that the Co-op’s management company and each
member of the management company’s staff is an employee of the Co-op because the Co-op
pays the management company an annual “Administrative fee.” (Id. at 2-3.) Plaintiffs also
assert that the elevator maintenance company, and roofers, painters, an exterminator, contractors
and their sub-contractors who are “under contract” to service the Building regularly are
“regularly contracted employees” of the Co-op. (Pls. Mem. of Law at ECF pp. 6-7.)
On November 7, 2014, Local 32BJ, Service Employees International Union (the
“Union”) filed a request to arbitrate the termination of TC’s employment (the “Arbitration”).
(Defs.’ 56.1 ¶ 9.) The Union, on behalf of TC, claimed that his termination was arbitrary, in
violation of the Collective Bargaining Agreement (“CBA”). Both parties were represented by
attorneys and were given a full opportunity to offer testimony, present evidence, examine and
cross-examine witnesses at the hearing held. (See “Arbitration Op.,” Margolis Decl. Ex. D at 3.)
The Co-op claimed that TC had been terminated for combative and un-cooperative behavior,
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including making an unfounded safety complaint to the New York City Department of
Environmental Protection that resulted in the shutoff of services to the Building. (Id. at 4-6.)
The Union, on behalf of TC, claimed principally that TC was arbitrarily and unjustly discharged,
did not fail to cooperate with the Co-op, and was terminated because he refused to work in the
basement due to a threat to his health and safety. (Id. at 6.) TC testified personally, denying the
Co-op’s accusations and alleging that management had thwarted his ability to perform his job.
(Id. at 11.) The Arbitrator found that:
[i]t is clear from the testimony of the witnesses as well as the e-mails and
threatening notes from the Grievant [(TC)] that he was having problem
cooperating with management . . . . The Grievant, admittedly a good worker until
approximately two years prior to his termination, apparently had a change of
attitude that altered his behavior toward his Employer. In the last two years, in
particular the last year, there were a number of incidents which reflected his
attitude that only he knew what was best for the building . . . . Based on the
evidence submitted, as well as the testimony of both the Employer witnesses and
the Grievant, I find that the Employer did not violate the Agreement when it
terminated the Grievant.
(Id. at 11-13.) The Arbitrator further found that “although the attacks by [Plaintiffs] were
particularly nasty and threatening,” TC was not trying to provoke his own dismissal and
therefore was entitled under the CBA to eleven weeks’ severance pay. (Id. at 13.)
On or about the same date that the Union filed its request to arbitrate TC’s
dismissal, TC filed a “Whistleblower Complaint” against Defendants with the Occupational
Safety and Health Administration (“OSHA”). (Defs.’ 56.1 ¶ 10.) On December 30, 2014,
Plaintiffs filed notices of charges of discrimination under Title VII, the ADA, and the ADEA,
against Defendants, with the Equal Employment Opportunity Commission (“EEOC”). (Id. ¶ 11.)
By Notice of Dismissal dated February 24, 2016, the EEOC informed Plaintiffs that it was
unable to conclude that the information they had provided established a violation of the antidiscrimination laws. (Margolis Decl. Ex. A; Compl. at ECF p. 7.) OSHA dismissed the
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Whistleblower Complaint on May 29, 2015. (Margolis Decl. Ex. F.)

DISCUSSION
Summary judgment is warranted if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). Material facts are those that “might affect the outcome of the suit under the
governing law,” and there is a genuine dispute where “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Rojas v. Roman Catholic Diocese of Rochester,
660 F.3d 98, 104 (2d Cir. 2011) (internal quotation marks and citation omitted). The Court must
“construe all evidence in the light most favorable to the nonmoving party, drawing all inferences
and resolving all ambiguities in its favor.” Dickerson v. Napolitano, 604 F.3d 732, 740 (2d Cir.
2010) (citation omitted).

SC’s Claims
Defendants move to dismiss SC’s claims for lack of subject matter jurisdiction,
arguing that she has no standing to bring any of the claims because she was never employed by
Defendants.
It goes almost without saying that there can be no viable claim of employment
discrimination (other than one relating to a refusal to hire) absent the existence of an
employment relationship. Title VII, the ADEA, and the ADA define an “employee” as “an
individual employed by an employer.” 42 U.S.C. § 2000e(f) (Title VII); 28 U.S.C. § 630(f)
(ADEA); 42 U.S.C. § 12111(4) (ADA). Both the NYSHRL and NYCHRL prohibit an employer
from discharging from employment or discriminating against a “person” in compensation or in
the terms, conditions, or privileges of employment. N.Y. Exec. Law § 296(1); N.Y.C. Admin. §
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8-107. It is well established in this Circuit that, for Title VII purposes, being hired and
compensated by the putative employer are essential conditions to the existence of an employeremployee relationship. See O’Connor v. Davis, 126 F.3d 112, 115-16 (2d Cir. 1997); see also
Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1177 (2d Cir. 1996) (NYSHRL relies on
federal standards); Wang v. Phoenix Satellite Television U.S., Inc., 976 F. Supp. 2d 527, 532
(S.D.N.Y. 2013) (NYCHRL does not extend protection to unpaid positions). Here, it is
undisputed that SC was never compensated by the Co-op for any services, nor is there any other
evidence that SC was ever hired by Defendants. Accordingly, because SC was never an
employee for the purposes of any of the federal or state law causes of action and thus is not
eligible to assert her statutory claims, SC’s claims are dismissed in their entirety. The remainder
of the opinion will address TC’s claims.

TC’s Claims
Title VII, the ADEA, and the ADA define “employer” as “a person engaged in an
industry affecting commerce who has fifteen or more employees for each working day in each of
twenty or more calendar weeks in the year.” 42 U.S.C. § 2000e(b); 29 U.S.C. § 630(b); 42
U.S.C. § 2322(5)(A). NYSHRL and NYCHRL provide that an “employer” must have four or
more persons in its employ. N.Y. Exec. Law § 292(5); N.Y.C. Admin. Code § 8-102(5).
Defendants have proffered evidence that they did not have more than three employees in 2014 or
2015, and also argue that they are not engaged in an industry affecting commerce because the
Co-op only owns a single cooperative apartment building. Although Defendants operate within
the large New York City real estate market and hire contractors and employees from the general
labor market, all of which affect interstate commerce, Plaintiffs have failed to frame any genuine
factual dispute as to whether the Co-op was a qualifying “employer” within the meaning of the
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statutes under which they assert their claims. Plaintiffs proffer only conclusory assertions that
employees of a management company that was contracted to provide services to the Co-op, and
others who performed various particularized tasks “under contract” with the Co-op from time to
time, directly or as employees or subcontractors of other entities, were employees of the Co-op
in some general sense. In light of the evidence submitted by Defendants as to the relevant
employee census and Plaintiffs’ admission that TC and a part-time porter were the only “weekly
(compensated) wage earners under contract with the Corporation” (Pls. Mem. of Law at ECF p.
5), Plaintiffs’ assertions regarding the employment status of other individuals and entities are
insufficient to raise a genuine factual dispute as to whether the Co-op employed fewer than four
individuals at any relevant time. Defendants are thus entitled as a matter of law to judgment
dismissing TC’s federal, New York state and city claims against the Co-op. Since Plaintiffs
merely assert that Friedman was an employer by virtue of her authority as President of the Coop, the claims against her must be dismissed as well.
To the extent that TC is attempting to amend his complaint in his opposition to
Defendants’ summary judgment motion to add an additional claim under Sarbanes-Oxley (see
Pls. Mem. of Law at 2), that request is denied, inter alia, as futile since Sarbanes-Oxley’s
whistleblower provisions apply only to public companies. See Leshinsky v. Televant GIT, S.A.,
942 F. Supp. 2d 432, 440 (S.D.N.Y. 2013). The Court has considered the parties’ remaining
arguments; in light of the dismissal of Plaintiffs’ claims for the reasons described above, it is
unnecessary to reach Defendants’ remaining contentions.

CONCLUSION
Defendants’ motion for summary judgment is granted in its entirety. The Clerk
of the Court is respectfully requested to enter judgment in favor of Defendants and close the
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case.
The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this
Order would not be taken in good faith. Accordingly, any application to proceed on appeal in
forma pauperis is denied. See Coppedge v. United States, 369 U.S. 438, 444 (1962).
This Memorandum Order and Opinion resolves docket entry number 11.
SO ORDERED.
Dated: New York, New York
January 17, 2017
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge
A copy of this order has been mailed to:
Thomas J. and Susan Crean
101 Middlefield Ave.
Waterbury, CT 06705

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