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Johnson v. Port Authority of New York and New Jersey

March 23, 2010

PHILIP JOHNSON, PRO SE, PLAINTIFF,
v.
PORT AUTHORITY OF NEW YORK AND NEW JERSEY, WORLDWIDE FLIGHT SERVICES, INC. AND JOHN F. KENNEDY INTERNATIONAL AIRPORT, DEFENDANTS.



The opinion of the court was delivered by: Dora L. Irizarry, U.S. District Judge

MEMORANDUM & ORDER

Pro se plaintiff Philip Johnson filed this discrimination action against Worldwide Flight Services, Inc. ("Worldwide"), the Port Authority of New York and New Jersey ("Port Authority"), and John F. Kennedy International Airport ("JFK"). On July 24, 2009, the court granted Worldwide's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). See generally Johnson v. Port Authority of New York and New Jersey et al., 2009 WL 2227921 (E.D.N.Y. July 24, 2009). Pursuant to Fed. R. Civ. P. 56, Port Authority moves for summary judgment. As Port Authority is responsible for the operation of JFK, which is not itself a separate legal entity, Port Authority (hereinafter "defendant") is the sole remaining defendant. For the reasons set forth below, the motion is granted, and the action is dismissed in its entirety.

I. Background

As an initial matter, Port Authority deposed plaintiff on March 17, 2009. Plaintiff states that he was never given a copy of this deposition for verification (Pl.'s Resp. 3), and the court further notes that his signature is absent from the deposition transcript filed with the court. (See Occhiogrosso Aff. Ex. C, at 35.) In light of this, and defendant's failure to address these discrepancies in its Reply, the court will not consider this deposition in ruling on the instant motion. See, e.g., Elder-Keep v. Aksamit, 460 F.3d 979, 984 (8th Cir. 2006) (citation omitted) ("[I]n summary judgment proceedings... a district court may properly reject unsworn documents"); Evans v. Spila, 1994 WL 16465067, at *2 (5th Cir. Jan. 25, 1994) (finding unverified deposition testimony to "not [be] appropriate for summary judgment consideration").

In January 2007, plaintiff sought employment with Worldwide at JFK. (Compl. 3, 5.) Pursuant to Transportation Security Administration regulations, any employee who works at JFK must be issued a Security Identification Area ("SIDA") badge. (Blaettler Aff. ¶ 2.) On January 16, 2007, plaintiff submitted an application to defendant for a SIDA badge. (See generally Occhiogrosso Aff. Ex. D.) Accompanying his application was a photograph of plaintiff, who is African-American. (Resp. 2.) The photograph depicts him with a head covering of the type commonly worn by members of the Rastafarian religious group. (Id.)

The SIDA application form included the following question: "Have you ever in your life been convicted of, plead no contest or plead nolo-contendre, plead guilty, or been found not guilty by reason of insanity to an offense other than a parking or speeding violation in this country or elsewhere?" (Occhiogrosso Aff. Ex. D,at 3.) If the applicant answered this question affirmatively, the form then instructed him or her to provide details for each offense. (Id.) It also stated that "[f]alse statements or non-disclosure of pertinent information may disqualify an applicant from receiving an Airport I.D. Card." (Id.) Plaintiff indicated on his application form that he had been convicted of disorderly conduct in 1986, but listed no other convictions, pleas, or conditional dismissals. (Id.) He signed his application directly under a sentence that read, "I certify that all of the statements made in this entire application are true, and that I have not been convicted of a disqualifying crime... within the 10 years prior to the submission of this application...." (Id.)

On January 19, 2007, plaintiff's name was run through a Federal Bureau of Investigation ("FBI") background check. (See generally Occhiogrosso Aff. Ex. E.) This check revealed, in addition to the aforementioned 1986 conviction, a 1984 conviction for petit larceny. (Id. at 2.) On February 27, 2007, defendant sent plaintiff a letter denying his application for a SIDA badge on the ground that he had failed to disclose a previous conviction. (See generally Occhiogrosso Aff. Ex. F.) The letter further stated that "[t]his denial will be for a one year period which ends one year from the application date [after which] [y]ou will be eligible to re-apply for a JFK Security ID Card...." (Id.) Plaintiff appealed the denial of his SIDA badge by letter dated March 19, 2007. (See generally Occhiogrosso Aff. Ex. G.) Defendant affirmed its denial via letter dated April 23, 2007, stating: "You were denied the SIDA privileges because you failed to disclose a previous conviction, and a criminal background check of you found records that cited a prior conviction." (Occhiogrosso Aff. Ex. H.)

On July 3, 2008, plaintiff filed the instant action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law §§ 290--97 ("NYSHRL"), and the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 to 8-131 ("NYCHRL"). Defendant's Answer, filed November 17, 2008, demanded a jury trial. (See Docket Entry No. 21.) On August 10, 2009, defendant moved for summary judgment on the grounds that: (1) it is not an employer within the meaning of Title VII; and (2) it had a legitimate, non-discriminatory reason for its decision not to hire plaintiff. (Def.'s Mem. in Supp. of Summ. J. ("Def.'s Mem.") 4--5; Def.'s Reply 1.) Plaintiff counters that discriminatory animus was the true motivation behind defendant's hiring decision. He further argues that summary judgment is improper due to defendant's earlier demand for a jury trial.*fn1

II. Discussion

A. Summary Judgment Standard

The court has liberally reviewed plaintiff's papers to raise the strongest arguments that they suggest, in deference to his pro se status. See Triestman v. Fed. Bureau of Prisons, 470 F.3d. 471, 474--75 (2d Cir. 2006) (citations omitted). Summary judgment is appropriate when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The court must view all facts in the light most favorable to the nonmoving party, but "only if there is a 'genuine' dispute as to those facts." Scott v. Harris, 550 U.S. 372, 380 (2007). "When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Id. A genuine issue of material fact exists if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party may not rely on "[c]onclusory allegations, conjecture, and speculation," Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), but must affirmatively "set out specific facts showing a genuine issue for trial," FED. R. CIV. P. 56(e). "When no rational jury could find in favor of the nonmoving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Res. Servs., Ltd., 22 F.3d 1219, 1224 (2d Cir. 1994) (citing Dister v. Cont'l Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988)).

B. Title VII Discrimination

When analyzing claims made under Title VII, the NYSHRL, and the NYCHRL, the court follows the three-part burden allocation scheme set forth by the United States Supreme Court in McDonnell Douglass Corp. v. Green, 411 U.S. 792 (1973). See Dawson v. Bumble & Bumble, 398 F.3d 211, 216--17 (2d Cir. 2005) (applying McDonnell Douglass to NYSHRL and NYCHRL discrimination claims). Under the McDonnell Douglass analysis, the plaintiff carries the "initial burden... of establishing a prima facie case of racial discrimination." 411 U.S. at 802. In order to make out a prima facie case for discriminatory failure to hire, a plaintiff must demonstrate that he or she: (1) is a member of a protected group; (2) applied and was qualified for a job for which the employer was seeking applicants; (3) was rejected despite being qualified; and (4) after this rejection, the position remained open and the employer continued to seek applicants from persons with the plaintiff's qualifications. Id.

If the plaintiff makes a prima facie case, the burden shifts to "the employer to articulate some legitimate, non-discriminatory reason for the employee's rejection." Id. If the defendant carries this burden, the plaintiff must then show that the "reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981). A plaintiff who establishes both a prima facie discrimination case and pretext must still, in order to survive summary judgment, demonstrate that he can meet his "ultimate burden of persuading the trier of fact that the defendant intentionally ...


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