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Suares v. Cityscape Tours, Inc.

United States District Court, S.D. New York

March 12, 2014

Denise O. Suares, Plaintiff,
Cityscape Tours, Inc. d/b/a City Sights New York, et al., Defendants.


ALISON J. NATHAN, District Judge.

Plaintiff Denise Suares brings this case against Defendants Cityscape Tours, Inc. d/b/a City Sights New York ("Cityscape"), JAD Transportation, Inc. d/b/a City Sights New York ("JAD"), collectively the "JAD Defendants" or "JAD", City Sights New York ("City Sights NY LLC" or "City Sights"), and the individual Chandrashekar Singh. The complaint alleges sex discrimination and retaliation in violation of Title VII, unequal pay in violation of the Equal Pay Act and Fair Labor Standards Act, and race discrimination in violation of 42 U.S.C. § 1981. The case arises from Mr. Singh's alleged assault of the Plaintiff at a company holiday party and the Defendants' subsequent actions.

Before the Court are three motions for summary judgment: Plaintiff's Motion for Summary Judgment, Dkt. No. 79, City Sights' Motion for Summary Judgment, Dkt. No. 58, and the JAD Defendants' Motion for Summary Judgment, Dkt. No. 55. For the reasons that follow, Plaintiff's motion is DENIED, City Sights' motion is GRANTED, and the JAD Defendants' motion is GRANTED.


To prevail on a summary judgment motion, the moving party generally must demonstrate that "there is no genuine issue as to any material fact' and the moving party is entitled to a judgment as a matter of law.'" Anyanwu v. City of New York, No. 10 Civ. 8498, 2013 WL 5193990, at *1 (S.D.N.Y. Sept. 16, 2013) (quoting Fed.R.Civ.P. 56(a); Nabisco, Inc. v. Warner-Lambert Co., 220 F.3d 43, 45 (2d Cir. 2000)). When the burden of proof at trial would fall on the non-moving party, however, the moving party may meet its burden by "point[ing] to a lack of evidence... on an essential element" of the non-moving party's claim. Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir. 2009). There is a genuine issue of material fact if a reasonable jury could decide in the non-moving party's favor. Nabisco, 220 F.3d at 45. The court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 122 (2d Cir. 2004) (internal quotation marks omitted); accord Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).

To survive a summary judgment motion, the non-moving party "must come forward with specific evidence demonstrating the existence of a genuine dispute of material fact." Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). In doing so, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts' and may not rely on conclusory allegations or unsubstantiated speculation.'" Id. (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); FDIC v. Great Am. Ins. Co., 607 F.3d 288, 292 (2d Cir. 2010)).

Although "direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions[, n]onetheless, summary judgment remains available for the dismissal of discrimination claims in cases lacking genuine issues of material fact." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (citations omitted).


In her motion papers, Plaintiff disregarded Local Civil Rule 56.1(a), which requires a motion for summary judgment to be supported by "a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried." Plaintiff filed such a statement, Dkt. No. 82, but it provides absolutely no citations to the record, despite the mandate that "each statement... must be followed by citation to [admissible] evidence... set forth as required by Fed.R.Civ.P. 56(c)." Local Civil Rule 56.1(d). Furthermore, Plaintiff's response to the Defendants' motions failed to comply with Local Rule 56.1(b), which required "correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party, and if necessary, additional paragraphs containing a separate, short and concise statement of additional material facts as to which it is contended that there exists a genuine issue to be tried." Plaintiff's response disregarded this requirement entirely and provided no Counter-Statements as required by Local Rule 56.1(c). Therefore, the Court deems "[e]ach numbered paragraph in the statement of material facts set forth in [each defendant's 56.1] statement... admitted for purposes of the motion." Local Rule 56.1(c). Federal Rule of Civil Procedure 56 does not require the Court "to perform an independent review of the record to find proof of a factual dispute." Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (citations omitted).

Nevertheless, the Court does not blindly accept JAD and City Sights' 56.1 Statements at face value, as "allegations are not deemed true simply by virtue of their assertion in [the] Local Rule 56.1 statement.'" F.T.C. v. Med. Billers Network, Inc., 543 F.Supp.2d 283, 302 (S.D.N.Y. 2008) (quoting Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir. 2001)). To ensure that the "Local Rule 56.1 statement [did not] substitute for the admissibility requirement set forth in Fed.R.Civ.P. 56(e), " Holtz, 258 F.3d at 74, the Court has disregarded allegations that were "not accompanied by citation to admissible evidence" and allegations where "the cited evidence [did] not support the allegation." F.T.C. v. Med. Billers Network, Inc., 543 F.Supp.2d at 302. Accordingly, the following facts are undisputed and uncontroverted.

A. Facts

The Plaintiff, Denise Suares, works as a tour guide on double-decker bus tours of New York City. JAD 56.1 ¶¶ 9, 14; West Aff., ¶¶ 11, 13. She was hired as a tour guide by Defendant City Scape in October 2007, where she worked until April 2009, when she was transferred to Defendant JAD. JAD 56.1 ¶¶ 14-16; West Aff. 13-15. Defendant City Sights operates the buses. City Sights 56.1 ¶ 7; Freedberg Decl., Ex. C. (Suares Dep. at 33:3-10; 34:11-18). City Scape and JAD are employee leasing companies providing the employees needed to operate the tours, including drivers, tour guides, and dispatchers. City Sights 56.1 ¶ 6; Freedberg Decl., Ex. B (West Tr., 20:4-20).

The JAD Defendants were wholly-owned by Janet West, and neither she nor the JAD Defendants own or have any interest in City Sights. City Sights 56.1 ¶¶ 4-5; Freedberg Decl., Ex. B (West Tr., 16:14-25, 18:18-19, 29:15-23). The terms and conditions of the tour guides' employment is exclusively governed by a union agreement between a union and the JAD Defendants. JAD 56.1 ¶¶ 160-164; City Sights 56.1 ¶¶ 27-29; West Aff., ¶¶ 62-66; Freedberg Decl., Ex. F.

City Scape leased employees to City Sights until April 2009, when it ceased operations, and all employees were transferred to JAD. JAD 56.1 ¶¶ 7, 9; West Aff., ¶¶ 10-12. Defendant Singh worked for JAD as a dispatcher, a non-managerial position. JAD 56.1 ¶¶ 12, 149; West Aff., ¶¶ 16, 60.

On January 12, 2010, Suares, Singh, and other JAD employees attended a holiday party at Planet Hollywood in New York City. JAD 56.1 ¶ 25; City Sights 56.1 ¶ 12; D'Angelo Aff., Ex. B, ¶¶ 27-29, Ex. C. At the party, Defendant Singh sexually assaulted Suares; he "jumped onto the couch where she was sitting, threw his left leg over her shoulder, placed his right hand on top of or in the back of her head, and began banging his [unexposed] genitals into her face." JAD 56.1 ¶¶ 26-27; D'Angelo Aff., Ex. B, ¶ 30, Ex. C, Ex. E (Suares Dep. at 163:3-170:13). Suares unsuccessfully tried to push Singh off of her, and then JAD manager Colin West pulled Singh away. JAD 56.1 ¶ 28; City Sights 56.1 ¶ 15; Suares Dep. at 170:14-171:19.

Suares left the party immediately afterwards, worked the next day, January 13, without reporting the incident, and reported the incident to her direct supervisor, Tim Ries, on January 14. JAD 56.1 ¶ 30-32; Suares Dep. at 181:9-19, 182:16-184:5. Ries stated that "[t]he company will not tolerate that." Suares Dep. at 186:8-18. He asked her to describe the incident in writing, and she did so. JAD 56.1 ¶¶ 33, 37; Suares Dep. at 184:8-18; Booker Aff., ¶¶ 11-12, Ex. G. Ries also asked Suares to attend a meeting about the incident on January 18, and said he would contact the Human Resources director Michael Booker. JAD 56.1 ¶ 33; Suares Dep. at 184:8-18. Suares delivered her written Incident Report to Mr. Booker and met with him on January 18, 2010. JAD 56.1 ¶ 38; Booker Aff., ¶ 12; Suares Dep. at 209:19-210:16. Booker told her that the company would not tolerate such behavior. JAD 56.1 ¶ 40; Booker Aff., ¶¶ 14. Booker called Singh's supervisor, Rodney Trahan, and said that he wanted Singh "removed - relieved from the schedule, " which in JAD's parlance means fired. JAD 56.1 ¶¶ 41-42; Suares Dep. at 210:15-16; Booker Aff., ¶ 16; D'Angelo Aff., Ex. F (Singh Dep. at 67:5-9). Booker met with Singh that day and, after speaking with Singh and company owner Janet West, terminated his employment. JAD 56.1 ¶¶ 43, 45; Booker Aff., ¶ 17-19, Ex. H (Singh's Termination Notice); West. Aff. ¶¶ 17-18. Plaintiff never again had contact with Singh, or had any similar incident occur. JAD 56.1 ¶¶ 47, 49; Suares Dep. at 198:9-14, 200:4-10.

At various times before and after the incident, Suares' work schedule, hours, and wages changed. JAD sets work schedules seasonally, assigning the tour guides' working days and starting times, in January (Winter), March (Spring/Summer), and September (Fall). JAD 56.1 ¶ 64; Suares Dep. at 90:13-91:21. Plaintiff claims that General Manager Rodney Trahan retaliated against her by assigning her unfavorable schedules. JAD 56.1 ¶ 81; D'Angelo Aff., Ex. G (Suares EEOC Rebuttal Statement).

For Winter 2010 (January to March), Suares was scheduled for shifts beginning at 3:45 PM; this schedule began on January 5, 2010. JAD 56.1 ¶¶ 63-64; D'Angelo Aff., Ex. I (Suares Daily Trip Sheets). For Spring/Summer 2010, Suares was scheduled for shifts beginning at 8:20 AM. JAD 56.1 ¶ 66; D'Angelo Aff., Exs. J, K.

In Winter 2009, the weather was relatively warm and dry, resulting in relatively more tourism and ridership on double-decker, open top buses. JAD 56.1 ¶ 96, 104-108; West. Aff., ¶¶ 31-37, Exs. G, H (weather data). In Winter 2010, the weather was relatively cold and wet, harming tourism and ridership, resulting in fewer tours. Id. Both these weather-related decreases in business and changes in the timing of holidays decreased the hours and wages of tour guides, including Suares. JAD 56.1 ¶¶ 86, 95-111; West Aff. ¶¶ 23-27, 30-32, 38-40; D'Angelo Aff., Ex. D, Ex. G at JAD000693-694, 701, Ex. I at JAD001240-1243, Ex. M. at JAD000238-242, Ex. N, Ex. O.

In Spring 2010, fewer tour guides were scheduled for five shifts per week: roughly ten tour guides had a five-day schedule in Spring 2010, and only six of the 25 tour guides who had been scheduled for five days per week in Spring 2009 were scheduled for five days per week the next year. JAD 56.1 ¶¶ 92-94; West Aff. ¶¶ 25-27, Exs. E, F. Suares was 36th in seniority. Suares Oppo. Aff. ¶ 35. Altogether, a group of 16 similarly-situated tour guides with comparable seniority, including Suares, earned 15 to 54 percent less in 2010 than 2009; Suares fared relatively well, as her wages decreased by only 20 percent. JAD 56.1 ¶¶ 85, 90-91; West Aff., ¶ 21-22, 24, Ex. D.[1]

On April 6, 2010, Suares filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging sex discrimination in the form of sexual harassment, due to the January 12 incident. JAD 56.1 ¶ 53-56; D'Angelo Aff., Ex. C; Suares Dep. at 266:4-267:13, 287:25-290:17. The Charge was mailed to Defendants on April 28, 2010. JAD 56.1 ¶ 71; D'Angelo Aff., Ex. C. Suares amended her EEOC charge on September 7, 2010, to include a retaliation claim. JAD 56.1 ¶ 57; D'Angelo Aff., Ex. D. The Amended Charge included retaliation claims relating to alleged incidents occurring on April 11, April 18, and July 24, 2010. JAD 56.1 ¶¶ 73, 75; D'Angelo Aff., Ex. G. The EEOC investigated the allegations, ultimately issuing a Dismissal ...

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