[*1]
Valcarcel v First Quality Maintenance
2013 NY Slip Op 51793(U) [41 Misc 3d 1222(A)]
Decided on October 15, 2013
Supreme Court, Queens County
Siegal, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on October 15, 2013
Supreme Court, Queens County


Prince Valcarcel, Keith Cummings, Antonino Lanzarotta, Keith Cummings, Plaintiff,

against

First Quality Maintenance, Alliance Building Services Company, Classic Security, Colleen McDonald, Trinity Real Estate, The Rector Church Wardens & Vestrymen of Trinity Church, James Cooper, Peter Saint John, Vincent Petta and Christian Gonzales, Defendants.




12857/12

Bernice D. Siegal, J.



Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Defendants collectively move for an Order pursuant to CPLR §3211(a)(7) dismissing plaintiffs' complaint for failure to state a cause of action. Plaintiff Prince Valcarcel and plaintiff Lanzarotta (collectively as "Opposing Plaintiffs") submitted affidavits in opposition describing in [*2]more detail their professional relationships with defendants and the circumstances under which the alleged wrongs occurred. Plaintiff Cummings failed to submit any papers in opposition to defendants' motion to dismiss the complaint.

Facts


Opposing Plaintiffs contend that the defendants controlled, managed and maintained the buildings at issue and that defendants First Quality Maintenance and Alliance Buildings ("FQM) and Trinity Real Estate ("Trinity") were their employers. Plaintiff Prince Valcarcel ("Valcarcel") served as a night crew staff mechanic for 75 Varick Street, NY, NY. Plaintiff Lanzarotta ("Lanzarotta") was the Chief Engineer for 200 Hudson Street, NY, NY. 200 Hudson is owned by Trinity. FQM does not have an engineering department. Trinity operated, controlled and managed the engineering department where opposing plaintiffs worked. In addition, Valcarcel contends that when he was discharged, the only termination letter he ever received came from Trinity. Valcarcel alleges that he is African-American. Although the opposing plaintiffs' papers are not entirely clear on this issue, it appears that plaintiff Lanzarotta is Caucasian.

In 2007, while Valcarcel was in the mechanical room at 75 Varick Street, NY, NY, Gary Stankeiwtz ("Stankeiwtz"), Valcarcel's lead engineer and super chief at 75 Varick Street, informed him that Petta and Peter Saint John ("St. John"), Vice President of Operations at Trinity, both said that Valcarcel's face was too black and his accent was too thick to get the lead engineering job.

In August of 2007, Stankeiwtz told Valcarcel in presence of Melvin Munoz ("Munoz") that Valcarcel was talking too much and that St. John and Petta called him a rebel. In December of 2007, Stankeiwtz told Valcarcel that Munoz and Valcarcel will not be getting the engineering pay in January 2008. Tomas Buenos ("Buenos") was to be getting his pay despite the fact that Valcarcel was hired with his engineering certification in 2006, while Buenos received his certificate only in 2007. In 2006, during an interview with Petta, Valcarcel was categorically told that he was to receive his engineering pay in 2007.

While Buenos was promoted to the day shift, Valcarcel was never assigned to a building to use his Fire Safety Director Certification, even though he was employed with said certification. When Valcarcel confronted Petta about it, he was told that Trinity does not require night shift fire safety director. Stankeiwtz told Valcarcel that his heavy African accent was not good for business and Petta allegedly emphasized that Valcarcel was going to work the night shift until he rots. Stankeiwtz said that Petta and St. John wanted "more light skin faces at the front" and that was the reason while Buenos got the job.

Stankeiwtz told Lanzarotta that Valcarcel "was like all the other niggers!" When Lanzarotta, upset by the comment, asked for an explanation, Stankeiwtz continued the conversation in a similar racially derogatory and humiliating manner and even stated that plaintiff Valcarcel would never advance professionally.

Lanzarotta informed Valcarcel that Stankeiwtz told him that they had come to a [*3]conclusion that all the black workers are lazy including Valcarcel. In January 2008, Valcarcel brought the issues bothering him to the attention of Petta's boss, John Coleman ("Coleman"), who said he was going to do what he had to do. In January 2008, Valcarcel was sent to 100 Avenue of the Americas, to train Kenneth Goedtel ("Goedtel") and fill the position for an engineer in the building. Valcarcel was to be responsible for the equipment and Goedtel was to handle the manager and tenants. In February 2008, Stankeiwtz informed Valcarcel that the latter was being sent to 100 Avenue of the Americas to be kept away from the Trinity bosses to protect them and because St. John and Petta thought that Valcarcel "talked too much."

In April 2008, Valcarcel wanted to discuss his transfer and engineers pay with Petta but Petta instead reprimanded him for reporting the racial issues to Coleman in January 2008 as part of the reason why Stankeiwtz was fired in 2008. In May 2008, Valcarcel, Petta, and Coleman had a meeting. Valcarcel told Coleman that Petta reprimanded him for reporting the racial issues to Coleman. Valcarcel also stated that Petta's actions proved that Petta was a racist. Petta stormed out from the meeting and Valcarcel told Coleman that he was to take it up with the union.

In May 2008, Valcarcel filed a complaint with the union because of alleged racial discrimination based on his color, accent, and origin as well as his engineers pay. At a step II hearing it turned out that the union notified the mediator that the issue was solely the engineers pay and he had no knowledge of the discrimination issues. In January 2009, Petta notified Valcarcel that he was going to receive his engineers pay but he received no back pay.

In March or April, 2009, Petta called Lanzarotta on the phone and said to him referring to Valcarcel "could you believe that nigger called me a racist in front of my boss." The following day Lanzarotta notified Dijo Celic ("Celic"), the Property Manager for Trinity, of the content of the conversation with Petta.

In June 2009, Petta terminated Valcarcel claiming that the building owners at Trinity church had asked for one man reduction in force at his location. The only letter regarding his termination Valcarcel received in or about January, 2010, six (6) months after his dismissal. In a conversation with Valcarcel Petta said "[t]his what happens to niggaz [sic] like you that calls [sic] me a racist, pack your belongings and leave the building immediately." Petta prohibited Valcarcel from calling anyone in Trinity or going into any of the Trinity buildings. That very day Valcarcel filed a complaint with the union. On June 24, 2009, Valcarcel went to protest in front of the Trinity church headquarters at 74 Trinity Place. The Director of Facilities came out and took Valcarcel to his office to talk and he was surprised by the fact that Valcarcel was not sent back to the building he came from. On June 26 and 30, 2009, Petta called Valcarcel's house and threatened him.

When Lanzarotta confronted Petta on the question of Valcarcel being terminated and later brought the matter to the attention of Celic once again. Celic stated he would notify St. John. In addition, on or about January or February, 2010, Lanzarotta approached Petta and told him that the job held by Valcarcel was posted as open and that he believed that Valcarcel should be recalled to that position. Petta told him to mind his own business. Lanzarotta complained to Celic [*4]who promised to figure out why this was happening.

Lanzarotta is alleging that as a result of his reporting racial discrimination, about November or December, 2009, members of Trinity and FQM, began retaliating against him in a variety of ways. For instance, Christian Gonzales ("Gonzales"), Property Manager for Trinity, allegedly intentionally took his parking spot away. In addition, Lanzarotta was directed to perform work that was not within his scope of duties. These directives were from Gonzales, a Trinity employee, and Mark Torello ("Torello"), Director of Engineering, who worked for both Trinity and FQM. On multiple occasions Lanzarotta complained through emails to Trinity management and to FQM management that he was being retaliated against since the time he gave statements in support of Valcarcel.

Lanzarotta also received his first write up in twenty-eight (28) years for not following a directive fast enough. He was required by Torello to make a copy of a storage room key and give it to Ernie, the Foreman for Janitorial. Lanzarotta is alleging that the write up was pretextual in that he received the email after work hours and then called in sick the next day. Despite the fact that he duly complied with the directive on his next working day, "due to [his] communications with Trinity," Lanzarotta was "indefinitely suspended" from Trinity and FQM on May 3, 2010. However, on or about May 7, 2010, Lanzarotta was reinstated by Torello.

Lanzarotta was ultimately fired again on March 8, 2013. The only explanation Lanzarotta received was that he was being fired for copying Trinity management on pertinent emails. Lanzarotta responded that he had a decision from the National Labor Relations Board which permitted him to email Trinity employees. In addition, Lanzarotta stated that he was always receiving emails from members of Trinity. According to Lanzarotta, he was fired because he "admitted to being a witness to negative comments about Valcarcel."

The Opposing Plaintiffs allege that they experienced various forms of harassment from defendants on the job site based on racial discrimination. Particularly, the Opposing Plaintiffs contend that Valcarcel was denied overtime even though he had seniority over the employees that were awarded the overtime hours. Allegedly, most of the workers that were awarded overtime were not African-American or African while the managers who were making the decisions regarding overtime were not African-American or African.

The Opposing Plaintiffs further allege that defendants made defamatory statements about them and subjected them to dirty and difficult work conditions and that they were "threatened with their jobs [sic]" for filing the instant action and for filing their charges, complaints and claims. Pursuant to their complaint, the Opposing Plaintiffs were forced by defendants into signing stipulations with the threat of termination for infractions that were not proven or for other wrongful reasons, these acts constitute constructive termination, were suspended and later terminated and that the defendants wrongfully terminated them and that said termination was discriminatory in nature on the basis of "race, disabilities, hostile work environment, and violations [sic]." The Opposing Plaintiffs state that all defendants conspired with one another regarding the pattern of discrimination and that this pattern lasted from at least 2007 until the [*5]present time.

The Opposing Plaintiffs argue that defendants' aforesaid actions violated the New York State Human Rights Law (Executive Law § 290 et seq.) (the "NYSHRL"), New York City Human Rights Law (Administrative Code of City of New York § 8-101 et seq.) (the "NYCHRL"), the State Constitution, "the New York State Department of Labor Laws [sic]." In addition, the Opposing Plaintiffs allege their entitlement to recovery under breach of contract, defamation, quantum meruit, and unjust enrichment theories.

Discussion


"On a motion to dismiss the complaint pursuant to CPLR §3211(a)(7) for failure to state a cause of action, the court must afford the complaint a liberal construction (see CPLR §3026), accept the facts alleged in the complaint as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory.'" (Torres v. Louzoun Enterprises, Inc., 105 AD3d 945 [2d Dep't 2013], [quoting Leon v. Martinez, 84 NY2d 83, 87 [1994].) The court must "accept as true the facts alleged in the complaint and any submissions in opposition to the dismissal motion." (511 West 232nd Owners Corp v. Jennifer Realty Co., 98 NY2d 144, 152 [2002].)

In addition, "a plaintiff may submit affidavits to remedy defects in the complaint and preserve inartfully pleaded, but potentially meritorious claims" (Mills v. Gardner, 106 AD3d 885, 886 [2nd Dept 2013] quoting Cron v. Hargro Fabrics, Inc., 91 NY2d 362, 366 [1998]; Rovello v. Orofino Realty Co., Inc., 40 NY2d 633 [1976]; see also Maldonado v. Olympia Mech. Piping & Heating Corp., 8 AD3d 348, 350 [2d Dep't 2004].) Although defendants repeatedly expressed concerns regarding the insufficiency of the Opposing Plaintiffs' complaint, "[a] court may freely consider affidavits submitted by the plaintiff[s] to remedy any defects in the complaint." (Well v. Yeshiva Rambam, 300 AD2d 580 [2d Dep't 2002]; Leon v. Martinez, 84 NY2d 83, 88 [1994].)

Therefore, construing the pleadings in the light most favorable to the Opposing Plaintiffs, deeming all factual allegations presented therein to be true, and using the affidavits submitted by the Opposing Plaintiffs in opposition to the defendants' motion to dismiss to remedy defects in the complaint, the court finds that some of the causes of action alleged by the Opposing Plaintiffs were adequately plead. Plaintiff Keith Cummings ("Cummings"), however, failed to submit any papers in opposition to the defendants' motion to dismiss. Since the complaint does not provide factual allegations sufficient to state any cause of action or claim for relief, Cummings's case against defendants is dismissed.

Joint Employment

Defendants state that the Opposing Plaintiffs' allegations against Trinity are insufficient to establish that Trinity was their joint employer. Under the joint employer doctrine, an employee formally employed by one entity, can be found to be constructively employed by another entity. Generally, for an entity to qualify as a joint employer, it has to have control over employees. (See Dinah v. Salzman Elec. Co., 2005 NY Misc. LEXIS 3591 [Sup. Ct. Queens County Oct. 27, [*6]2005];Service Employees Intern. Union, Local 32BJ v. N.L.R.B., 647 F.3d 435, 443 [2d Cir. 2011]; see People v. Greenfield, 9 Misc 3d 1113(A) *4, 2005 NY Slip. Op. 51518(U) [[Village of Muttontown] Just. Ct., Nassau County 2005], [holding that "[a] joint employer' relationship can exist when two entities have control over the employment opportunities' and the employment characteristics of an employee's position [e.g. hiring and firing', pay, insurance and records', promotion, labor relations, etc.]"], [citing to NLRB v. Solid Waste Services, 38 F.3d 93, 94 [2d Cir. 1994]; Longstreet Assoc. v. Bevona, 16 F.Supp.2d 290, 296 [S.D.NY 1998].)

To exercise "immediate control" the purported joint employer must (1) do the hiring and firing; (2) directly administer any disciplinary procedures; (3) maintain records of hours, handle on payroll, or provide insurance; (4) directly supervise employees; or (5) participate in the collective bargaining process. (Service Employees Intern. Union, Local 32BJ v. N.L.R.B., 647 F.3d 435, 443 [2d Cir. 2011], [citing to AT & T v. NLRB, 67 F.3d 446, 451 [2d Cir. 1995]].)

There can be no joint employment relationship where there is an agreement between the purported joint employer and plaintiff's direct employer putting "the sole responsibility and authority for any and all selection, hiring, management, coaching, evaluation, discipline, promotion and employment termination of its employees" on the direct employer. (See Adler v. 20/20 Cos., 82 AD3d 915, 917 [2d Dep't 2011].) "Putative defendants were found to have defacto liability in circumstances such as where an entity is making behind the scenes decisions about material terms of employment such as hiring, firing and rate of pay; or where an indirect employer had ultimate responsibility for hiring and firing decisions; or where a parent corporation directed a subsidiary corporation to violate anti-discrimination laws.'" (Dinah v. Salzman Elec. Co., 2005 NY Misc. LEXIS 3591, *8 [Sup. Ct. Queens County Oct. 27, 2005]. Nonetheless, to be considered a joint employer in the context of both the NYSHRL and NYCHRL, the putative employer must handle certain aspects of the employer/employee relationship in order to maintain employment discrimination claims against the constructive employer as well as the direct employer. (See Barbosa v continuum Health Partners, Inc. , 716 FSupp 210 [SDNY 2010].)

The Opposing Plaintiffs alleged that Trinity ran, operated, controlled and managed the entire engineering department where the Opposing Plaintiffs worked and that at least some of the employees at FQM were promoted or denied a promotion in accordance with Trinity's needs. Petta and St. John, both Trinity employees, allegedly refused to promote Valcarcel because of his skin color but Trinity made the decision to give him his engineers pay. Lanzarotta alleged that Torello and Gonzales, both Trinity employees, "directed [him] to perform work that was not within his scope of duties." Lanzarotta also alleged that Gonzales was scheduling his work and following up on the work he wanted Lanzarotta to complete with his crew. Similarly, Torello was giving Lanzarotto job assignments. In addition, Torello was the one who reinstated Lanzarotto after the latter was suspended for the first time. The Opposing Plaintiffs claim that Petta made the firing decision in Valcarcel's case. The explanation for Valcarcel's termination was that Trinity allegedly "asked for a one man reduction in force." The only letter of termination ever received by Valcarcel also came from Trinity. [*7]

Thus, the Opposing Plaintiffs, in essence, alleged that Trinity was exercising "immediate control" over the terms and conditions of their employment and was "making behind the scenes decisions about material terms of employment." Taking all the factual allegations as true, the court finds that the Opposing Plaintiffs adequately plead the existence of a joint employer relationship. Accordingly, the part of the defendants' motion asking for a dismissal of claims against Trinity based on the purported failure to establish the existence of a joint employer relationship is denied.

On the other hand, the Opposing Plaintiffs failed to allege that Trinity Church (the "Church") was their direct or joint employer. The Opposing Plaintiffs do not allege that the Church controlled the terms and conditions of their employment, supervised their work, had the power to hire or fire them, provided benefits, or made promotional decisions. Accordingly, the part of the defendants' motion asking for a dismissal of claims against the Church is granted.

Personal Liability

Defendants claim that the Opposing Plaintiffs cannot establish personal liability under any theory as to Petta, Gonzales, McDonald, Cooper, and St. John ("individual defendants"). However, NYCHRL (Administrative Code of City of NY § 8—101[a][1]) provides that:

"It shall be an unlawful discriminatory practice:

(a) For an employer or an employee or agent thereof, because of the actual or perceived race, creed, color, national origin of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment (emphasis added)."

Respectively, "plaintiff[s] ha[ve] a cause of action under this provision against [their] employer[s] as well as their co-employees." (Murphy v. ERA United Realty, 251 AD2d 469, 471 [2d Dep't 1998].)

The language of the NYSHRL (Executive Law § 296[1][a]), on the other hand, does not include employees or agents:

"It shall be an unlawful discriminatory practice:

(a) For an employer or licensing agency, because of an individual's race, creed, color, national origin to refuse to hire or employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment."

Alternatively, personal liability may be imposed upon individual defendants under Executive Law § 296(6), which makes it "an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so."

The Opposing Plaintiffs alleged that McDonald was their employer within the meaning of the NYSHRL. Therefore, he can be personally liable under NYSHRL. However, to be liable [*8]personally under the provision, other individual defendants would have to have some ownership interest in the corporate employer or "the power to do more than carry out personnel decisions made by others." (Murphy, 251 AD2d at 471.) Neither the complaint, nor the affidavits contain factual allegations establishing individual defendants' ownership in any one of the corporate employers. But the Opposing Plaintiffs alleged that Cooper was the CEO/VICAR of Trinity, the Circular Head of the Real Estate, and the Head of the Trinity Church. The Opposing Plaintiffs thus alleged that Cooper had "the power to do more than carry out personnel decisions made by others."

The Opposing Plaintiffs alleged that Petta and St. John had animosity towards Valcarcel's race and skin color and because of that he had no chance to advance and would have to "work the night shift until he rot" and that they were capable of making a decision about whether someone with Valcarcel's skin color would be moving up the career ladder. In addition, Petta was the one who made hiring and firing decisions at least in Valcarcel's case. Petta also did not allow Valcarcel to come back to the Trinity building after the latter was terminated. Therefore, the Opposing Plaintiffs alleged that St. John and Petta possessed "the power to do more than carry out personnel decisions made by others." Allegations related to defendant Gonzales are insufficient to make a conclusion as to the scope of his powers or to state that he was "aiding and abetting" the discriminating employers within the meaning of the NYSHRL.

Since all of the individual defendants can be potentially personally liable under the NYCHRL causes of action, the part of the defendants' motion to dismiss all NYCHRL claims against the individual defendants is denied. In addition, while defendants Petta, McDonald, Cooper, and St. John can be potentially personally liable under the NYSHRL, all NYSHRL claims against defendant Gonzales are dismissed. Thus, the part of the defendants' motion to dismiss all NYSHRL claims against the individual defendants is granted in part and denied in part.

Disparate Treatment

To establish a disparate treatment claim based on race, plaintiff must make a prima facie showing of racial discrimination. (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 310 [2004].) The complainant has to show that "(1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination." (See id.; Lambert v. Macy's East, Inc., 84 AD3d 744, 745 [2d Dep't 2011].)

Valcarcel alleged that he was African or African-American. He is, therefore, a member of a protected class. (New York State Div. of Human Rights v. Caprarella, 82 AD3d 773, 774 [2d Dep't 2011], ["[i]t is undisputed that the complainant—an African— American—is a member of a protected class."]) The Opposing Plaintiffs also alleged that they were either actively or constructively discharged and that they were qualified to hold the positions from which they were terminated.

Valcarcel also alleged that other non-African descent individuals were promoted over him even though they were less qualified. The Opposing Plaintiffs stated that on multiple occasions Petta and St. John emphasized that Valcarcel would not get promoted because his face was "too [*9]black" and his accent was "too thick." Failure to promote may constitute an adverse employment action. (Hanna v. New York Hotel Trades Council, 18 Misc 3d 436, 443, [Sup. Ct. NY Cnty, Dec 7 2007], "[i]t is well established that less severe actions, such as refusal to promote, may also be deemed an adverse employment action"]; citing Phillips v. Bowen, 278 F.3d 103 (2d Circuit 20020; see Executive Law §296[1][a] ["[i]t shall be unlawful discriminatory practice for an employer because of an individual's race, creed, color, national origin to discriminate against such individual in conditions or privileges of employment."]; Administrative Code of City of NY § 8-107[1][a] ["[i]t shall be an unlawful discriminatory practice [f]or an employer or an employee or agent thereof, because of the actual or perceived race, creed, color, national origin to discriminate against such person in compensation or in terms, conditions or privileges of employment."])

Similarly, Valcarcel alleged that he was terminated "under circumstances giving rise to an inference of race discrimination," "that is, that [he] [was] terminated because of [his] race." (See Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 307 [2004].) Valcarcel showed that there was a possibility of a causal connection between the racially derogatory comments uttered by persons holding managerial positions and his subsequent discharge.

The Opposing Plaintiffs claim that on multiple occasions Petta and St. John allegedly stated that they needed "lighter faces at the front." Petta told Valcarcel that he was discharged and stated that "[t]his what happens to niggaz [sic] like you that calls [sic] me a racist." Although Petta claimed that there was a need in one man reduction in force, approximately six (6) months after Valcarcel was discharged, his position was reopened. Valcarcel thus satisfied his burden to demonstrate that the discharge occurred "under circumstances giving rise to an inference of race discrimination."

The court finds that since Valcarcel alleged all the necessary elements of the disparate treatment cause of action, the part of the defendants' motion asking for a dismissal of Valcarcel's disparate treatment cause of action is denied.

Hostile Work Environment

NYSHRL (Executive Law § 296) requires that unwelcome racial conduct be "severe or pervasive" as an element of a cause of action alleging hostile work environment. (Nelson v. HSBC Bank USA, 87 AD3d 995, [2d Dep't 2011], ["[s]tate law in this area, mimicking federal law, requires that harassment be severe or pervasive' to be actionable."])

The Opposing Plaintiffs in their complaint failed to allege, in non-conclusory fashion, any facts supporting the proposition that "the workplace [was] permeated with discriminatory intimidation, ridicule, and insult that [was] sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 310 [2004], [quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 [1993].)

While the Opposing Plaintiffs allege that the purported conduct took place on a few occasions, they do not allege that it "pervaded the workplace." (See Mitchell v. TAM Equities, Inc., 27 AD3d 703, 705-06, [holding that "[b]ecause the complaint expressly alleged that the challenged conduct occurred on more than a few isolated occasions, but instead pervaded the workplace the complaint state[d] a cause of action pursuant to Executive Law § 296(1)(a), [*10]based on sex and race harassment that creates a hostile work environment"].) Moreover, not all of the racially derogatory remarks were expressed in Valcarcel's presence.

While "even a mere[ly] offensive' racial slur is reprehensible it is not actionable." (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 311 [2004].) In the instant case, the Opposing Plaintiffs failed to allege that the epithets complained of pervaded plaintiff's work environment. New York Court of Appeals held that " a few isolated incidents of racial enmity'" are insufficient to establish a claim of hostile work environment." (Id., [citing to Snell v. Suffolk County, 782 F.2d 1094, 1103 [2d Cir.1986].) " [I]nstead of sporadic racial slurs, there must be a steady barrage of opprobrious racial comments.'" (Forrest, 3 NY3d at 311, [citing to Schwapp v. Town of Avon, 118 F.3d 106, 110 [2d Cir.1997].) The Opposing Plaintiffs failed to show, or even to allege in either their complaint or any of the affidavits, "that the egregious remarks interfered in any way with [their] job performance." (Forrest, 3 NY3d at 311).

Accordingly, the hostile work environment claim under NYSHRL is dismissed for failure to state a cause of action.

On the other hand, "under the City Human Rights Law, liability for a harassment/hostile work environment claim is proven where a plaintiff proves that he or she was treated less well than other employees because of the relevant characteristic." (See Administrative Code of City of NY § 8—107; Nelson v. HSBC Bank USA, 87 AD3d 995, 999 [2d Dep't 2011].) In addition, in 2005 the City Council enacted the Local Civil Rights Restoration Act of 2005 amending the New York City Human Rights Law (Administrative Code of City of NY § 8—101 et seq. ) and providing that

" The provisions of this title [i.e., the New York City Human Rights Law] 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.'" (Albunio v. City of New York, 16 NY3d 472, 477 [2011].)

The New York Court of Appeals requires the courts to interpret the provision "broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible." (Id. at 477-478; Nelson, 87 AD3d at 997.) In Williams v. NYCHA, 61 AD3d 62, 66 (1st Dep't 2009), the First Department noted:

"[t]the City HRL now explicitly requires an independent liberal construction analysis in all circumstances, even where state and federal civil rights laws have comparable language. The independent analysis must be targeted to understanding and fulfilling what the statute characterizes as the City HRL's uniquely broad and remedial' purposes, which go beyond those of counterpart state or federal civil rights laws."

Valcarcel alleged that he was called racial epithets, fired, denied overtime, or a better position because of his race, religion, or national origin. Accepting the facts alleged as true and [*11]according Valcarcel the benefit of every possible inference, the court finds that he stated a cause of action for hostile work environment under the more relaxed standard of the NYCHRL.

Therefore, the court grants the part of the defendants' motion asking for a dismissal of Valcarcel's hostile work environment claim under the NYSHRL for failure to state a cause of action. However, the court finds that Valcarcel adequately plead the hostile work environment cause of action under the NYCHRL. Therefore, the portion of the defendants' motion asking for a dismissal of the hostile work environment claim under the NYCHRL is denied.

Retaliation

Under the NYSHRL (Executive Law § 296[7]), "[it] shall be an unlawful discriminatory practice for any person engaged in any activity to which this section applies to retaliate or discriminate against any person because he or she has opposed any practices forbidden under this article (emphasis added)." In addition, "it is unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices." (Adeniran v. State, 106 AD3d 844, [2d Dep't 2013].)

To make a prima facie demonstration of retaliation under Executive Law § 296, a claimant has to show that "(1) the claimant was engaged in protected activity, (2) the claimant's employer was aware that he or she participated in such activity, (3) the claimant suffered an adverse employment action based upon his or her activity, and (4) there was a causal connection between the protected activity and the adverse action." (Id.)

The Opposing Plaintiffs alleged that they "opposed statutorily forbidden discriminatory practices" as on numerous occasions they reported the content of racially discriminatory conversations to the managers at Trinity and FQM. In addition, Valcarcel called Petta a racist in front of Petta's boss in response to the discriminatory comments. Therefore, the Opposing Plaintiffs alleged both that "the claimant[s] w[ere] engaged in protected activity" and that "the claimant[s'] employer was aware that [they] participated in such activity."

The Opposing Plaintiffs also alleged that as a result of their actions they were fired and thus they suffered an adverse employment action. Finally, the Opposing Plaintiffs claim that Lanzarotta "was fired because he admitted to being a witness to negative comments about Valcarcel" while Valcarcel was fired because he called Petta a racist. Thus, the Opposing [*12]Plaintiffs alleged that "there was a causal connection between the protected activity and the adverse action."

NYCHRL provides that it is "an unlawful discriminatory practice for any person engaged in any activity to which this chapter applies to retaliate or discriminate in any manner against any person because such person has ... opposed any practice forbidden under this chapter (emphasis added)." (Administrative Code of City of NY § 8—107[7]; Albunio v. City of New York, 16 NY3d 472, 477 [2011].) The Opposing Plaintiffs' factual allegations relating to the retaliation cause of action satisfy the more liberal standard of the Administrative Code of City of NY § 8—107(7) (see discussion supra).

Therefore, the portion of the defendants' motion asking for a dismissal of Valcarcel's and Lanzarotta's retaliation claims under the NYSHRL and the NYCHRL is denied.

Breach of Contract

To adequately plead a cause of action for breach of contract, plaintiffs have to allege "the existence of a contract, the plaintiff's performance pursuant to that contract, the defendants' breach of their obligations pursuant to the contract, and damages resulting from that breach." (Elisa Dreier Reporting Corp. v. Global Naps Networks, Inc., 84 AD3d 122, 127 [2d Dep't 2011].) In addition, "to plead a breach of contract cause of action, a complaint must allege the provisions of the contract upon which the claim is based." (Maldonado v. Olympia Mech. Piping & Heating Corp., 8 AD3d 348, 350 [2d Dep't 2004].)

While the Opposing Plaintiffs arguably allege that there was a contract in existence, neither the complaint, nor the affidavits allege "the plaintiff's performance pursuant to that contract, the defendants' breach of their obligations pursuant to the contract, and damages resulting from that breach." Furthermore, the Opposing Plaintiffs failed to allege any of the provisions of the contract upon which their claim is predicated.

Accordingly, the part of the defendants' motion asking to dismiss the breach of contract claim for failure to state a cause of action is granted.

Unjust Enrichment, Quantum Meruit, and Defamation

[*13]To recover in an action for unjust enrichment, plaintiffs would have to show that (1) defendants were enriched, (2) at plaintiffs' expense, and (3) that " it is against equity and good conscience to permit [defendants] to retain what is sought to be recovered.'" (Mandarin v. Wildenstein, 16 NY3d 173, 182 [2001], [quoting Citibank, N.A. v. Walker, 12 AD3d 480, 481 [2d Dep't 2004].) To establish a quasi-contract claim in quantum meruit, "a claimant must establish (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they were rendered, (3) an expectation of compensation thereof, (4) and the reasonable value of the services." (Atlas Refrigeration-Air Conditioning, Inc. v. Lo Pinto, 33 AD3d 639, 640 [2d Dep't 2006].)

The Opposing Plaintiffs failed to make factual allegations necessary to state a cause of action in actions for unjust enrichment and quantum meruit. In addition, since the Opposing Plaintiffs alleged that there was a contract governing their professional relationships with defendants, they cannot recover under the quantum meruit and unjust enrichment theories. (Cox v. NAP Constr. Co., Inc., 10 NY3d 592 [2008] ["claims were correctly dismissed, because a party may not recover in quantum meruit or unjust enrichment where the parties have entered into a contract that governs the subject matter."])

Accordingly, the unjust enrichment and quantum meruit claims are dismissed for failure to state a cause of action.

CPLR §3016(a) provides that to state a cause of action in defamation, "the particular words complained of shall be set forth in the complaint." The Opposing Plaintiffs failed to set forth any specific defamatory language. (Abakporo v. Daily News, 102 AD3d 815 [2d Dep't 2013], [dismissing the defamation cause of action for failure to comply with the pleading standard of CPLR 3016[a] where plaintiff "failed to set forth the specific statements that allegedly were defamatory."])

In addition, the complaint must allege the time when, place where, and manner in which the false statement was made, and specify to whom it was made." (Epifani v. Johnson, 65 AD3d 224, 233 [2d Dep't 2009].) Neither the Opposing Plaintiffs' complaint nor their affidavits allege the necessary elements of the cause of action.

Also, the Opposing Plaintiffs failed to state what kind of damages, if any, they suffered as a result of the alleged defamation. (Id., at 234, [holding that where "the complaint only allege[d] that [plaintiff] has been injured in her good name and reputation, has suffered great pain and [*14]mental anguish, and has otherwise been damaged in all to her damage [sic] in a sum to be proven at the time of trial according to proof' [the] assertion fail[ed] to allege special damages with sufficient particularity."]) Failure to plead specific damages with particularity is not critical where a defamatory statement is slander per se. (Id.) However, since the Opposing Plaintiffs failed to specify the defamatory statement or statements at issue, it is impossible to establish whether they would qualify as slanderous per se. Accordingly, the defamation cause of action is dismissed.

Therefore, the part of the defendants' motion asking to dismiss the defamation, unjust enrichment, and quantum meruit claims for failure to state a cause of action is granted.

New York Labor Law Claim

Under the Fifth Cause of Action in their complaint, the Opposing Plaintiffs allege in conclusory fashion that "[a]s a result of Defendants' actions, Defendants have violated New York State Department of Labor Laws [sic]." The Opposing Plaintiffs failed to specify which sections of the New York Labor Law defendants allegedly broke. The New York Labor Law regulates a wide variety of labor and employment law areas. For example, it regulates employees' hours of work (§ 160); employee meal breaks (§ 162); required frequency of pay (§ 191); notice and recordkeeping obligations (§ 195); employee health and safety (§ 200); employee privacy (§ 203-c); prevailing wages of building service employees (Art. 9); building repair work (Art. 10); and labor relations (Art. 20).

CPLR § 3013 provides that "[s]tatements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." Neither the complaint, nor the affidavits gave defendants or the court a fair notice of the transactions or occurrences they intended to prove under the New York Labor Law or contained the material elements of a New York Labor Law cause of action. (See Atkinson v. Mobil Oil Corp., 205 AD2d 719, 720 [2d Dep't 1994], [dismissing plaintiff's breach of contract cause of action where plaintiff's "complaint and bill of particulars in no way alerted [defendant] that [plaintiff] was claiming a breach of contract based on [defendant's] alleged failure to obtain insurance"]; Joachimsen v. Perini Corp., 253 AD2d 737 [2d Dep't 1998], [the court properly dismissed the plaintiffs' cause of action under Labor Law § 241[6] "since the plaintiffs failed to allege violations of specific sections of the Industrial Code either in their complaint or bill of particulars."])

Accordingly, the part of the defendants' motion asking to dismiss the New York Labor Law claim for failure to state a cause of action is granted.

[*15]Conclusion


Defendants' motion for an Order pursuant to CPLR §3211(a)(7) dismissing plaintiffs' complaint for failure to state a cause of action is granted in part and denied in part.

The part of the defendants' motion asking to dismiss plaintiff Cummings's case against all defendants is granted;

The part of the defendants' motion asking for a dismissal of claims against Trinity based on the purported failure to establish the existence of a joint employer relationship is denied;

The part of the defendants' motion asking for a dismissal of claims against the Church is granted;

The part of the defendants' motion asking to dismiss all NYCHRL claims asserted in the matter against the individual defendants is denied;

The part of the defendants' motion asking to dismiss all NYSHRL claims asserted in the matter against defendants Petta, McDonald, Cooper, and St. John is denied. The part of the motion asking for a dismissal of all claims under the NYSHRL against defendant Gonzales is granted;

The part of the defendants' motion asking for a dismissal of Valcarcel's disparate treatment claim is denied;

The part of the defendants' motion asking for a dismissal of Valcarcel's hostile work environment claim under the NYSHRL is granted;

The part of the defendants' motion asking for a dismissal of Valcarcel's hostile work environment claim under the NYCHRL is denied;

The part of the defendants' motion asking for a dismissal of Valcarcel's retaliation claim under [*16]the NYCHRL and the NYSHRL is denied;

The part of the defendants' motion asking for a dismissal of Lanzarotta's retaliation claim under the NYCHRL and the NYSHRL is denied;

The part of the defendants' motion asking for a dismissal of the Opposing Plaintiffs' New York Labor Law claim is granted;

The part of the defendants' motion asking for a dismissal of the Opposing Plaintiffs' breach of contract, defamation, unjust enrichment, and quantum meruit claims is granted.

This constitutes the decision and order of this court.

Dated: October 15, 2013___________________________

Bernice D. Siegal, J. S. C.