Geffner v. Quanta Services, Inc. et al

Filing 55

OPINION AND ORDER: re: 46 MOTION to Dismiss Amended Complaint filed by Pete Butkowsky, Darrell Jenkins, John Desena, Quanta Services, Inc., Ashley Miller, Earl C. Austin, Jr., Phoenix Power Group, Inc., Tom Buchanan. For the foregoing reasons, Defendants' motion to dismiss for improper venue is DENIED. Defendants' motion to dismiss the claims against Defendant Austin is GRANTED. The remaining Defendants shall answer the Amended Complaint within 14 days of the date of this opinion and order. The Clerk of Court is directed to close the motion at Docket Number 46. SO ORDERED. (Signed by Judge J. Paul Oetken on 12/27/2018) (ama)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
EVAN GEFFNER,
18-CV-3761 (JPO)

Plaintiff,

OPINION AND ORDER

-vQUANTA SERVICES, INC., et al.,
Defendants.

J. PAUL OETKEN, District Judge:
Plaintiff Evan Geffner brings this action against Defendants Quanta Services, Inc.,
Phoenix Power Group, Inc., Tom Buchanan, Darrell Jenkins, John DeSena, Pete Butkowsky,
Ashley Miller, and Earl C. Austin, Jr., alleging discrimination and retaliation in violation of
Title VII, 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981; the Family Medical Leave Act
(“FMLA”), 29 U.S.C. § 2601 et seq.; the Americans with Disabilities Act (“ADA”), 42 U.S.C. §
12101 et seq.; the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.; and the
New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (Dkt. No. 33 at 1–2,
14–24.) Defendants now move to dismiss Geffner’s Amended Complaint in its entirety for
improper venue, and to dismiss Geffner’s claims against Defendant Earl C. Austin, Jr. for failure
to state a claim. (Dkt. No. 46.) For the reasons that follow, the motion to dismiss for improper
venue is denied, but the motion to dismiss the claims against Defendant Austin is granted.
I.

Background
A.

Factual Background

The following facts, which are presumed true for purposes of this motion, are drawn from
Geffner’s Amended Complaint. (Dkt. No. 33 (“AC”).)

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Defendant Phoenix Power Group, Inc. is a Delaware corporation with a principal place of
business in Deer Park, New York. (AC ¶ 14.) Defendant Quanta Services, Inc. is a Delaware
corporation. 1 (AC ¶ 13.) Phoenix Power Group, Inc. was acquired by Quanta Services, Inc.
sometime in 2015. (AC ¶ 32.) Both Phoenix Power Group, Inc. and Quanta Services, Inc.
(collectively, the “Corporate Defendants”) conduct business in the state of New York. (AC
¶¶ 13–14.)
Plaintiff Evan Geffner is a resident of New Jersey. (AC ¶ 10.) Geffner worked under the
Corporate Defendants’ employ at all times relevant to this suit, namely from 2005 until his
termination, effective May 1, 2017. (AC ¶¶ 12, 21, 56.) From 2005 through April 2016, Geffner
worked for Defendants as an independent contractor; thereafter, he worked for Defendants as a
full-time employee until the time of his termination. (AC ¶¶ 21, 35–36.) Geffner performed
nearly all of his work for Defendants from his New York City office located in Manhattan. (AC
¶ 22.)
Defendants Tom Buchanan, Darrel Jenkins, John DeSena, Ashley Miller, Pete
Butkowsky, and Earl C. Austin, Jr. each held various roles with the Corporate Defendants at all
times material to this suit, and each is alleged to have held supervisory authority over Geffner.
(AC ¶¶ 15–20.)
In or around February 2011, Geffner informed Defendant DeSena that Geffner was
Jewish. (AC ¶ 23.) This sparked a stream of “off color” comments from DeSena targeting
Geffner’s religion. (Id.) These comments included descriptions of Geffner as cheap because of
his religious status, jokes about the Holocaust, and statements that Geffner would not be

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The Amended Complaint does not provide Quanta Services, Inc.’s principal place of
business. According to a declaration attached to Defendants’ motion to dismiss, Quanta
Services, Inc.’s principal place of business is Houston, Texas. (Dkt. No. 48-4 ¶ 3.)

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welcome at company social outings because of his religion. (See, e.g., AC ¶¶ 25–28, 31, 42–43.)
DeSena’s comments were made over an approximately five-year period spanning at least from
June 2011 to May 2016. (See AC ¶¶ 24, 43.) Desena made the majority of these comments in
the Corporate Defendants’ Deer Park, New York office. (See, e.g., AC ¶¶ 25–31, 33.) Geffner
represents that despite having alerted his supervisors to DeSena’s comments, no corrective action
was taken. (See, e.g., AC ¶¶ 43, 52.) Geffner also alleges that he was forced to work on Jewish
holidays on at least 40 occasions during the course of his employment, despite his having
requested time off to observe the holidays. (AC ¶ 40.) Geffner alleges that he made these
requests for time off and that he performed 99% of the work demanded of him, including on
Jewish holidays, from his office in Manhattan. (AC ¶¶ 39–40.)
In late 2016 or early 2017, Geffner informed Defendants Jenkins and Buchanan that his
wife was pregnant and that she would be undergoing a C-Section in March 2017. (AC ¶¶ 44–
45.) Corresponding from his Manhattan office, Geffner told both Jenkins and Buchanan that he
would need to take time off in connection with his wife’s pregnancy and the C-Section
procedure. (Id.) When the date of the C-Section arrived, Geffner took off work, doing so under
the impression that he was on FMLA leave. (AC ¶ 47.) But on the day following the procedure,
Geffner received an “unbelievable and upsetting” email from Buchanan in which Buchanan told
Geffner that he needed to immediately resume working, or, in the alternative, meet with
Buchanan to discuss a new employment relationship with Defendants. (AC ¶ 48.) Geffner
responded with an email detailing his dissatisfaction with Buchanan’s email, as well as with the
“history of bullying, harassment, [and] discrimination” he had experienced while under
Defendants’ employ. (AC ¶ 49.) Geffner included Defendant Quanta Services, Inc.’s Human
Resources (“HR”) department on this response. (Id.)

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Upon his return to work, Geffner submitted a request to substitute his accrued paid time
off for FMLA leave and initiated a formal discrimination complaint. (AC ¶¶ 46, 50.) Defendant
Miller, who worked for the Corporate Defendants as HR Director, initiated an investigation into
Geffner’s allegations. (AC ¶ 51.) Approximately two weeks later, Miller asked Geffner to come
to Quanta Services, Inc.’s New Jersey offices for a meeting. (AC ¶ 53.) Geffner requested that
the meeting be held instead at a nearby hotel, citing his fears of experiencing a hostile work
environment. (Id.) Miller agreed to accommodate this request. (Id.) At their meeting at the
hotel, Miller informed Geffner that his employment with Defendants was being terminated, and
she provided Geffner with a formal termination letter. (AC ¶ 56.) Geffner alleges that his
termination was discriminatory and stemmed from retaliation for the discrimination complaints
and leave requests that Geffner had made. (See AC ¶¶ 57–58.)
B.

Procedural Background

Geffner commenced this action by filing an initial complaint on April 27, 2018. (Dkt.
No. 1.) After Defendants moved to dismiss the initial complaint for improper venue and for
insufficient process and for improper service of process on Defendant Austin, who was
misnamed in the initial complaint (Dkt. No. 27; Dkt. No. 28 at 9–10), Geffner filed the operative
Amended Complaint on June 14, 2018 (Dkt. No. 33). On July 5, 2018, Defendants filed the
instant motion to dismiss Geffner’s Amended Complaint. (Dkt. No. 46.) Defendants move
pursuant to Federal Rule of Civil Procedure 12(b)(3) and 28 U.S.C. § 1406(a) to dismiss
Geffner’s Amended Complaint in its entirety for improper venue, and they move pursuant to
Federal Rule of Civil Procedure 12(b)(6) to dismiss Geffner’s claims against Defendant Austin
for failure to state a claim. (Id.)

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II.

Venue
Defendants move pursuant to Rule 12(b)(3) and 28 U.S.C. § 1406(a) to dismiss Geffner’s

Amended Complaint for improper venue. (Dkt. No. 46; Dkt. No. 47 at 1.)
A.

Legal Standard

Under 28 U.S.C. § 1406(a), a district court shall dismiss (or, in some circumstances,
transfer) “a case laying venue in the wrong division or district.” Rule 12(b)(3) provides the
mechanism by which a party can ask a court to do so. “On a motion to dismiss for improper
venue under Rule 12(b)(3), the burden of proof lies with the plaintiff to show that venue is
proper.” Cartier v. Micha, Inc., No. 06 Civ. 4699, 2007 WL 1187188, at *2 (S.D.N.Y. Apr. 20,
2007). Where a court declines to hold an evidentiary hearing, “the plaintiff need only make a
prima facie showing of [venue].” Gulf Ins. Co. v. Glasbrenner, 417 F.3d 353, 355 (2d Cir. 2005)
(alteration in original) (quoting CutCo Indus. v. Naughton, 806 F.2d 361, 364 (2d Cir. 1986)).
“In analyzing whether the plaintiff has met this burden, courts must ‘view all the facts in a light
most favorable to plaintiff.’” Peerless Network, Inc. v. Blitz Telecom Consulting, LLC, No. 17
Civ. 1725, 2018 WL 1478047, at *2 (S.D.N.Y. Mar. 26, 2018) (quoting Phillips v. Audio Active
Ltd., 494 F.3d 378, 384 (2d Cir. 2007)).
B.

Discussion

28 U.S.C. § 1391(b), which governs choice of venue for civil actions filed in the federal
district courts, provides that such an action may be brought in:
(1) a judicial district in which any defendant resides, if all defendants are residents
of the State in which the district is located; (2) a judicial district in which a
substantial part of the events or omissions giving rise to the claim occurred, or a
substantial part of property that is the subject of the action is situated; or (3) if
there is no district in which an action may otherwise be brought as provided in
this section, any judicial district in which any defendant is subject to the court’s
personal jurisdiction with respect to such action.

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Id. According to Geffner, venue lies in this District based on the statute’s second prong, because
“the events giving rise to this action arose in New York County, within the Southern District of
New York.” (AC ¶ 8; see also Dkt. No. 51 at 2–6.)
When evaluating assertions of venue grounded in Section 1391(b)(2), the Second Circuit
has instructed “district courts to take seriously the adjective ‘substantial’” and “to construe the
venue statute strictly.” Gulf Ins. Co., 417 F.3d at 357. Accordingly, “significant events or
omissions material to the plaintiff’s claim must have occurred in the district in question, even if
other material events occurred elsewhere.” Id. (emphases in original). Still,
“Section 1391(b)(2) does not restrict venue to the district in which the ‘most substantial’ events
or omissions giving rise to a claim occurred. Rather, . . . [Section] 1391(b)(2) . . . permits venue
in multiple judicial districts as long as a ‘substantial part’ of the underlying events took place in
those districts.” Daniel v. Am. Bd. of Emergency Med., 428 F.3d 408, 432 (2d Cir. 2005)
(cleaned up).
The Second Circuit has directed district courts to undertake a two-part inquiry when
confronting Section 1391(b)(2) assertions of venue. “First, a court should identify the nature of
the claims and the acts or omissions that the plaintiff alleges give rise to those claims. Second,
the court should determine whether a substantial part of those acts or omissions occurred in the
district where suit was filed, that is, whether ‘significant events or omissions material to [those]
claim[s] . . . have occurred in the district in question.’” Id. (alterations in original) (citation
omitted) (quoting Gulf Ins. Co., 417 F.3d at 357). The question of substantiality involves “a
qualitative [rather] than a quantitative inquiry,” and can be answered only “by assessing the
overall nature of the plaintiff’s claims and the nature of the specific events or omissions in the
forum, and not by simply adding up the number of contacts.” Id. at 432–33.

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The Court concludes that Geffner’s Amended Complaint alleges facts sufficient to make
a prima facie showing of venue in this District. As it must, the Court begins by identifying the
“nature of the claims and the acts or omissions that the plaintiff alleges give rise to those claims.”
Id. at 432. Here, all of Geffner’s employment discrimination claims arise in connection with his
work for the Defendants, 99% of which he alleges was performed in his Manhattan office within
this District. (AC ¶ 22.) The other acts giving rise to Geffner’s claims are Defendants’ allegedly
discriminatory behaviors. These acts include: Defendant DeSena’s discriminatory comments
made directly to Geffner, the majority of which occurred outside this District in Deer Park, New
York (see, e.g., AC ¶¶ 25–31, 33); Defendants’ demands that Geffner work (principally out of
his Manhattan office) on Jewish holidays despite prior requests for leave that Geffner had made
from his Manhattan office (AC ¶¶ 39–40); Defendants’ demand that Geffner perform his
employment duties while he was away from work in connection with his wife’s pregnancy,
which followed on the heels of Geffner’s requests for FMLA leave issued from his Manhattan
office (AC ¶¶ 44–45); and Defendants’ ultimate termination of Geffner during a meeting in New
Jersey allegedly in retaliation for his initiation of an HR complaint, in connection with which
Defendants directed correspondence to Geffner at his Manhattan office (AC ¶¶ 50–56).
Having taken stock of the conduct giving rise to Geffner’s claims, the Court now asks
whether the portions of that conduct that occurred within this District amount to a “substantial
part of those acts or omissions” sufficient to satisfy Section 1391(b)(2). Daniel, 428 F.3d at 432.
The Court concludes that they do. Perhaps most importantly, nearly all of Geffner’s work for
Defendants was performed within this District. (See AC ¶ 22.) Consequently, two of the central
injuries he alleges to have suffered in connection with Defendants’ conduct, namely (1) his being
forced to perform work in a hostile work environment and (2) his being forced to work despite

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his requests for religious and family leave, also occurred here. (See, e.g., AC ¶¶ 39–41, 52.)
Precedents from this Circuit make “clear that in some cases, the fact that the Plaintiff suffers
harm in a particular judicial district is sufficient to satisfy [Section] 1391(b)(2).” See Kirk v. N.Y.
State Dep’t of Educ., No. 8 Civ. 6016, 2008 WL 819632, at *4 (W.D.N.Y. Mar. 25, 2008)
(collecting cases). That Geffner’s claims of injury allege the disruption of a working relationship
that he conducted almost exclusively from this District is a strong indicator that those claims are
properly brought here.
The Court is also able to identify a substantial portion of Defendants’ alleged conduct
material to this suit that was either performed in or directed to this District. For example, certain
Defendants went to meet Geffner in his Manhattan office when they offered him a full-time
employment position. (AC ¶¶ 35–36.) Certain Defendants also directed communications to
Geffner’s Manhattan office in which they demanded that he work on Jewish holidays and denied
his eligibility for FMLA and ADA leave. (AC ¶¶ 39–40, 54.) The Second Circuit has upheld
venue in districts in which plaintiffs receive correspondences giving rise to their claims, even
when those correspondences were directed to them by Defendants from outside that district. See,
e.g., U.S. Titan, Inc. v. Guangzhou Zhen Hua Shipping Co., 241 F.3d 135, 153 (2d Cir. 2001)
(“That many of [defendant’s] communications reached [plaintiff’s] offices in New York through
the Connecticut brokers does not alter the fact that [defendant] directed communications to New
York. Accordingly, venue in the Southern District of New York was proper.”); Bates v. C & S
Adjusters, Inc., 980 F.2d 865, 868 (2d Cir. 1992) (“[Location of plaintiff’s] receipt of a
collection notice is a substantial part of the events giving rise to a claim under the Fair Debt
Collection Practices Act.”). So too here, Defendants’ directing to this District a substantial

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portion of the correspondences giving rise to Geffner’s claims further bolsters the propriety of
laying venue in this District.
To be sure, venue might also lie in the District of New Jersey, the district in which
Geffner and a number of the Defendants reside and the District in which he received his ultimate
notice of termination. (AC ¶¶ 10, 55.) But Section 1391(b)(2) “‘contemplates that venue can be
appropriate in more than one district’ and ‘permits venue in multiple judicial districts as long as a
“substantial part” of the underlying events took place in those districts.’” Daniel, 428 F.3d at
432 (quoting Gulf Ins. Co., 417 F.3d at 356). Accordingly, in deciding Defendants’ motion to
dismiss, the Court’s task is not to determine whether venue for this action might also lie
elsewhere, but rather to assess whether Geffner has adequately alleged that “significant events or
omissions material to [his] claim[s] . . . have occurred in the district in question, even if other
material events occurred elsewhere.” Gulf Ins. Co., 417 F.3d at 357 (emphasis in original).
Because Geffner has done so, Defendants’ Rule 12(b)(3) motion to dismiss is denied.
III.

Failure to State a Claim
Defendants move pursuant to Rule 12(b)(6) to dismiss Geffner’s claims against

Defendant Austin for failure to state a claim. (Dkt. No. 46; Dkt. No. 47 at 10–13.)
A.

Legal Standard

To survive a motion to dismiss for failure to state a claim, a pleading “must contain
sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
A claim is facially plausible when a plaintiff pleads facts that would allow “the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. at 678. “The Court must
accept as true all well-pleaded factual allegations in the complaint, and draw [ ] all inferences in

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the plaintiff’s favor.” Goonan v. Fed. Reserve Bank of New York, 916 F. Supp. 2d 470, 478
(S.D.N.Y. 2013) (alteration in original) (internal quotation marks omitted).
B.

Discussion

Geffner does not allege that Austin himself performed or was directly involved in any of
the conduct at issue in this suit. Instead, the only factual allegations in the Amended Complaint
regarding Defendant Austin consist of the following:
At all times material, Defendant EARL C. AUSTIN, JR., (hereinafter referred to
as “AUSTIN”), was and is the president, CEO, COO and Director of Defendants
Phoenix Power Group, INC. [sic] and Quanta Services, Inc., and had supervisory
authority over Plaintiff with regard to his employment.
(AC ¶ 20.) Based on these allegations, Geffner brings claims against Austin under the following
statutory provisions: 42 U.S.C. § 1981 (AC ¶¶ 72–79); the New York State Human Rights Law
(“NYSHRL”), N.Y. Exec. Law § 296 (AC ¶¶ 94–103); and the New York City Human Rights
Law (“NYCHRL”), N.Y.C. Admin. Code § 8-107 (AC ¶¶ 104–19).
Geffner fails to state a claim under Section 1981. “Under § 1981, personal liability of a
defendant may not be predicated solely on a position of seniority.” Schanfield v. Sojitz Corp. of
Am., 663 F. Supp. 2d 305, 344 (S.D.N.Y. 2009). Instead, “individuals may be liable under
Section 1981 [only] if they were personally involved in [the alleged] discrimination.” Philip v.
GTECH Corp., No. 14 Civ. 9261, 2016 WL 3959729, at *12 (S.D.N.Y. July 20, 2016); see also
Littlejohn v. City of New York, 795 F.3d 297, 314 (2d Cir. 2015) (dismissing Section 1981 claim
where plaintiff failed to “allege that [individual defendants] had any personal involvement in”
unlawful conduct). Accordingly, Geffner’s Section 1981 claim against Austin is dismissed.
Geffner also fails to state a claim against Austin under the NYSHRL. It is true that the
New York Court of Appeals has suggested that an individual defendant may be liable as an
“employer” under the NYSHRL if the individual is “shown to have any ownership interest [in

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the offending entity] or any power to do more than carry out personnel decisions made by
others.” Patrowich v. Chem. Bank, 63 N.Y.2d 541, 542 (1984) (per curiam). But such an
“employer is never strictly liable for the conduct of employees, even if the harassing employee is
a Plaintiff’s supervisor.” Marchuk v. Faruqi & Faruqi, LLP, 100 F. Supp. 3d 302, 307
(S.D.N.Y. 2015) (citing Human Rights ex rel. Greene v. St. Elizabeth’s Hosp., 66 N.Y.2d 684,
687 (1985)). Rather, to state a claim against Austin as an individual employer under the
NYSHRL, Geffner would need to have alleged facts sufficient to establish that Austin not only
qualifies as one of Geffner’s “employers,” but also that he had “encouraged, condoned, or
expressly or impliedly approved” the discriminatory conduct at issue in this case. See id.
Because Geffner has not done so, his NYSHRL claims against Austin must be dismissed as well.
Finally, Geffner’s NYCHRL claims against Austin meet a similar fate. While the New
York Court of Appeals has interpreted the NYCHRL as subjecting corporate employers to strict
liability for the conduct of their managerial employees, see Zakrzewska v. New Sch., 14 N.Y.3d
469, 480–81 (2010), courts in this District have reasoned that “the [NYCHRL] is not so broad
that it imposes strict liability on an individual for simply holding an ownership stake in a liable
employer.” Marchuk, 100 F. Supp. 3d at 308 (emphasis added). Instead, “when courts permit
cases to proceed against individuals under the NYCHRL, it is because ‘they participate in the
conduct giving rise to a discrimination claim.’” Id. (quoting Feingold v. New York, 366 F.3d
138, 158 (2d Cir. 2004)). The individual defendant’s level of participation need not have been
major, as courts permit individual liability in cases involving only “some minimal culpability” on
the part of the individual, such as a “supervisor’s failure to take adequate remedial measures.”
Id. at 309 (second quoting Lewis v. Triborough Bridge and Tunnel Auth., 77 F. Supp. 2d 376,

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384 (S.D.N.Y. 1999)). But here, because Geffner makes no allegations at all regarding Austin’s
individual culpability, he has failed to state a claim against Austin under the NYCHRL.
Accordingly, all of Geffner’s claims against Defendant Austin are dismissed for failure to
state a claim.
IV.

Conclusion
For the foregoing reasons, Defendants’ motion to dismiss for improper venue is

DENIED. Defendants’ motion to dismiss the claims against Defendant Austin is GRANTED.
The remaining Defendants shall answer the Amended Complaint within 14 days of the date of
this opinion and order.
The Clerk of Court is directed to close the motion at Docket Number 46.
SO ORDERED.
Dated: December 27, 2018
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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