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Ibraheem v. Wackenhut Services, Inc.

United States District Court, E.D. New York

May 9, 2014


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For Daoud Ibraheem, Plaintiff: Tamara M. Harris, The Law Office of Tamara M. Harris, New York , NY.

For Wackenhut Services, Inc., Officer Carbanaro, Lt. Chamberlain, Sgt. Mclaughlin, Sgt. Pauline, Lt. Renato Velati, Defendants: Henry Morris, LEAD ATTORNEY, Arent Fox LLP, Washington, DC; David N. Wynn, Shawanna Lynnette Johnson, Arent Fox PLLC, New York, NY; Sonya Denise Johnson, Arent Fox, New York, NY.

For Federal Protective Service, F.P.O. Jose Alvarez, F.P.O. Boe, Defendants: Scott R. Landau, United States Attorneys Office, Eastern District Of New York, Brooklyn , NY.

For F.P.O. Gary Sandrowsky, F.P.O. Valentine, Defendants: Scott R. Landau, United States Attorneys Office, Eastern District Of New York, Brooklyn, NY; Sonya Denise Johnson, Arent Fox, New York , NY.

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PAMELA K. CHEN, United States District Judge.

Before the Court is the motion for summary judgment pursuant to Federal Rule of Civil Procedure (" FRCP" ) 56 of Defendant Wackenhut Services, Inc. (" Wackenhut" ) and five individual defendants, who are current or former Wackenhut employees (" Individual Defendants" ). Plaintiff Daoud Ibraheem, a former employee of

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Wackenhut, asserts claims for: (1) employment discrimination based on his age, race, and religion under Title VII of the Civil Rights Act of 1964 (" Title VII" ) and the New York State Human Rights Law (" NYSHRL" ) § 296; (2) hostile work environment; (3) retaliation; (4) intentional infliction of emotional distress, (5) negligent infliction of emotional distress, (6) defamation, and (7) breach of contract.[1] (Dkt. 8 at 2-7.) Because there remain genuine disputes of material fact with respect to Plaintiff's employment discrimination and hostile work environment claims based on religion, as well as his retaliation claim, Defendants' motion is denied as to those claims. All of Plaintiff's other claims, including his discrimination claims based on age and race, are dismissed either as non-justiciable or insufficient as a matter of law.


I. Plaintiff's Statement Pursuant to Rule 56.1

As an initial matter, Defendants urge the Court to disregard Plaintiff's counterstatement pursuant to Local Civil Rule 56.1 (" Rule 56.1" ) for failing to comply with the rule. (Dkt. 102 at 2.) Rule 56.1 requires that the facts relied upon in the party's briefs be set forth in a separate, concise statement. Rule 56.1(a). Indeed, Plaintiff's Rule 56.1 counterstatement (" Pl. St." ) does not comply with Rule 56.1 because it fails to adequately set forth the facts upon which Plaintiff relies in his opposition to the motion, and largely contains legal conclusions, not statements of fact with citations to evidence supporting his contentions. ( See Dkt. 105.)[2]

Generally, a party's failure to respond to the facts set forth in the moving party's Rule 56.1 Statement constitutes an admission of those facts. Jessamy v. City of New Rochelle, 292 F.Supp.2d 498, 504 (S.D.N.Y. 2003) (citations omitted). However, the Court has ample discretion to excuse a party's failure to comply with local rules. Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (citations omitted). Here, the Court finds good cause to excuse Plaintiff's failure to comply with Rule 56.1, and does not deem admitted all of the facts set forth in Defendants' 56.1 Statement (" Def. St." ). Plaintiff has conducted substantial discovery and has included numerous exhibits in his opposition Defendants' motion. Accordingly, the Court will deem admitted only those facts set forth in Defendants' 56.1 Statement that are not countered by admissible evidence in the record that is properly cited to by Plaintiff. See Monahan v. N.Y City Dep't of Corrections, 214 F.3d 275, 292 (2d Cir. 2000) (" While the trial court has discretion to conduct an assiduous review of the record in an effort to weigh the propriety of granting a summary judgment motion, it is not required to consider what the parties fail to point out." ) (quotations and citations omitted); Amnesty Amer. v.

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Town of West Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (Rule 56 " does not impose an obligation on a district court to perform an independent review of the record to find proof of a factual dispute" ).

As a consequence, most of the facts set forth immediately below and relied upon by the Court are taken from Defendants' 56.1 Statement.

II. Factual Background

A. Plaintiff's Employment by Wackenhut

Wackenhut is a private company that supplies security personnel to government customers, such as the Federal Protective Service (" FPS" ), for which Wackenhut provides security services in the New York area. (Def. St. ¶ ¶ 1-4.)[3] The Individual Defendants are five present or former Wackenhut employees: James Carbonaro, Renato Velati, Howard Chamberlain, Jean-Arnold Pauline, and William McLaughlin, all of whom either supervised or worked directly with Plaintiff. (Def. St. ¶ ¶ 24-30.) Carbonaro is the Project Manager; Velati is the Integrity Control Officer; Chamberlain is a former Lieutenant security officer; Pauline also is a former Lieutenant security officer; and McLaughlin is a former Sergeant security officer. (Def. St. 24-30.)[4]

At all times relevant to the complaint and the present motion, Plaintiff was a security officer at the federal facility known as 26 Federal Plaza, in New York City. (Def. St. ¶ 49.) Plaintiff is a black male of the Muslim religion, born on March 6, 1937. (Def. St. ¶ ¶ 32-34.) Wackenhut hired Plaintiff as an armed security officer on November 1, 2007, when Plaintiff was 70 years old. (Def. St. ¶ ¶ 49-51.) Wackenhut hired Plaintiff knowing that he was a Muslim who wore a beard for religious reasons. (Def. St. ¶ ¶ 49-51; Dkt. 103 ¶ 8.) Plaintiff was assigned to 26 Federal Plaza in New York City, primarily at the entrance to the Court of International Trade (" CIT" ) in Manhattan. (Def. St. ¶ ¶ 31-34.)

B. Defendants' Allegedly Discriminatory Treatment of Plaintiff

1. Plaintiff's Proof-of-Religion Letter

The parties do not dispute much with respect to the events surrounding the " proof-of-religion" letter attesting to Plaintiff's status as a Muslim. Rather, the primary disagreement regards what inferences can be drawn from those facts.

Wackenhut maintains a policy that all security personnel must be clean shaven, except for sideburns and mustaches, with exceptions afforded to security personnel who wear a beard for religious reasons. (Def. St. ¶ ¶ 59-60.) Personnel who seek to claim this exception must set forth in writing that they wear a beard for religious purposes. Plaintiff submitted such a letter to Wackenhut, which Wackenhut maintained in its office during his employment. (Def. St. ¶ ¶ 61-62.)

For two years after Plaintiff submitted the letter affirming his religious status, Plaintiff was not asked about his beard or asked to prove his religious status. (Def. St. ¶ ¶ 61-62.) According to Carbonaro's deposition testimony, asking a security guard to have the letter in his possession while working was not the regular policy or practice at Wackenhut, especially because Wackenhut kept Plaintiff's letter in

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its offices. (Dkt. 105-9 at 74-76.) Yet, on June 19, 2009, Chamberlain informed Plaintiff that Officer Gary Sandrowsky of the FPS felt that Plaintiff should keep a copy of his proof-of-religion letter on his person while at work, and Chamberlain ordered Plaintiff to carry the letter. (Def. St. ¶ ¶ 63-67; Dkt. 105-3 at 68; Dkt. 105-4 at 111.) Over the course of the following week, Plaintiff was asked multiple times by supervisors to produce the letter. (Def. St. ¶ ¶ 70-74.) First, Chamberlain asked whether Plaintiff had the letter. (Dkt. 105-3 at 77.) When Plaintiff said that he did not have the letter with him, Chamberlain said nothing else and walked away. (Def. St. ¶ ¶ 70-71; Dkt. 100-3 at 77.) The second time Plaintiff was asked for the letter, Defendant McLaughlin made the request. When Plaintiff stated that he did not have the letter, McLaughlin asked when he would have it, to which Plaintiff responded that he would have the letter the following Monday. McLaughlin said nothing further and walked away. (Dkt. 100-3 at 78.) Plaintiff next was asked by FPS Officer Jose Alvarez whether he had the letter. (Dkt. 100-3 at 78.) Although Plaintiff actually had the letter on him that time, he misrepresented to Alvarez that he did not have it. Alvarez gave no response and walked away. (Dkt. 100-3 at 79-80.) Lastly, Chamberlain again asked Plaintiff whether he possessed the letter. When Plaintiff told Chamberlain that he had the letter, Chamberlain responded, " Well, I'm glad that's over[.]" (Dkt. 100-3 at 81.) No one again asked Plaintiff about the letter. (Dkt. 100-3 at 81.)[5] The last time Plaintiff was asked about the letter was approximately June 25, 2009. (Dkt. 105-4 at 81.)

2. Plaintiff's Suspension for Inattentiveness to Duty

Approximately two months after being asked about the proof-of-religion letter, on August 25, 2009, FPS Officer Alvarez reported to Wackenhut that he and FPS Officer Gary Sandrowsky had observed Plaintiff asleep on duty. (Def. St. ¶ 81.) Sleeping while on duty is a terminable offense under Wackenhut's " disciplinary matrix," which prescribes certain penalties for various workplace infractions. (Def. St. ¶ ¶ 11, 83.) Based on the report that Plaintiff was asleep, Carbonaro recommended that Plaintiff be terminated, as prescribed by the disciplinary matrix. (Def. St. ¶ 83.) Plaintiff denied that he was asleep on the job and demanded that videotape evidence be produced to prove that he had not been asleep. (Def. St. ¶ 86; Dkt. 105-9 at 12-13.) No videotape was ever produced to Plaintiff, nor did Wackenhut ever obtain or review any videotape regarding the alleged sleeping incident. (Dkt. 105-9 at 18-19.)[6] Because Plaintiff denied that he was asleep, Isom, Wackenhut's General Manager, reduced Plaintiff's punishment to a two-day suspension for being inattentive to duty, per the disciplinary matrix. (Def. St. ¶ 87; Dkt. 100-8 at 5.)

3. Limited Access to Heated Booth

Plaintiff alleges in his complaint that other employees were permitted to warm

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themselves in a heated booth while on duty, but that Plaintiff was prohibited from doing so. (Dkt. 8 ¶ 22.) During his deposition, Plaintiff testified that he was only allowed access to the heated booth for ten minutes every hour, whereas other security officers were permitted unlimited access to the heated booth. (Def. St. ¶ ¶ 95-95; Dkt. 105-5 at 147.) Plaintiff ...

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