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Verga v. Emergency Ambulance Service, Inc.

United States District Court, E.D. New York

November 18, 2014


Christopher J. Benes, Esq., Jeffrey B. Gold, Esq., Melissa Beth Levine, Esq., GOLD, STEWART, KRAVATZ BENES & STONE, L.L.P., Westbury, NY, for Plaintiff.

Robert D. Cook, Esq., COOK, NETTER, CLOONAN, KURTZ & MURPHY, P.C., Kingston, NY, for Defendants.


DENIS R. HURLEY, Senior District Judge.

Plaintiff Richard Verga ("plaintiff") commenced this action against defendants Emergency Ambulance Service, Inc. ("EAS") and Kelly Linden ("Linden") (collectively "defendants") asserting claims of retaliatory employment practices in violation of 42 U.S.C. § 2000(e) ("Title VII"), 42 U.S.C. § 1981, and New York State Human Rights Law ("NYSHRL"), Executive Law § 296, and claims for unpaid wages pursuant to New York Labor Law Sections 191 and 195. Presently before the Court is defendants' motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 ("Rule 56") seeking dismissal of the Complaint. For the reasons set forth below, the defendants' motion is denied.


The following facts, drawn from the defendants' Local Rule 56.1 statement[1] and the parties' submissions are undisputed unless otherwise noted.

At all relevant times, plaintiff was employed by EAS as a New York State Emergency medical Technician ("EMT"). At all relevant times, Bruce Hydock ("Hydock") was employed by EAS as a New York State Advanced Emergency Technician - Paramedic ("paramedic"). On April, 23, 2010, in the course of plaintiff's work assignment he "was partnered" with Hydock requiring plaintiff to ride in an ambulance with Hydock. According to plaintiff, throughout the day Hydock "kept making comments to [plaintiff] that he wanted to have a sexual relationship with [plaintiff], " who repeatedly expressed that he was not interested. (Pl.'s Aff. ¶ 18.) At approximately 11:30 a.m., plaintiff and Hydock were seated in the front seat of the company ambulance, when Hydock touched plaintiff on the inner thigh near the crotch for approximately twenty seconds. Immediately upon returning to EAS offices, plaintiff reported the incident to management and provided management with an incident report. On that same evening, plaintiff made an entry on his Facebook page where he threatened "the mother fucker who thought today was a joke" by stating that he would "knock [that individual's] fucking teeth out, break [his or her] jaw [and] every bone in [his or her] left arm."[2]

Linden, the Human Resource Director at EAS, investigated plaintiff's claim and required Hydock to apologize to the plaintiff and to undergo sexual harassment training. Based on the content of plaintiff's Facebook message and interviews with other employees who expressed concern about plaintiff's behavior, Linden also determined that plaintiff should attend a Violence in the Workplace training seminar and prepared a letter requesting plaintiff's consent to participation in that training. The letter also stated that the "situation [was] being dealt with and handled by the Director of Operations and the Director of Human Resources." (Letter dated May 13, 2010 from Linden to Verga, Pl.'s Ex. 1.) Plaintiff initially signed the letter agreement, however approximately ten minutes later after speaking with his attorney, he requested that the letter be ripped up and refused to sign it. According to plaintiff, he "wanted the letter back" because after speaking with his attorney he realized that the letter asked him to acknowledge that EAS was appropriately addressing his complaint, and he felt that EAS had not addressed his complaint at all. (Pl.'s Aff. ¶ 54.) Plaintiff states that he told Linden that due to what he perceived to be a portion of the letter seeking EAS's exoneration he would not sign the letter, but would still take the anger management class. ( Id. ¶¶ 53-55.) On May 13, 2010, plaintiff left EAS and never returned. On May 20, 2010, EAS forwarded plaintiff a letter advising that he was being terminated from employment.


I. Applicable Law and Legal Standards

Summary judgment pursuant to Rule 56 is only appropriate where admissible evidence in the form of affidavits, deposition transcripts, or other documentation demonstrates the absence of a genuine issue of material fact, and one party's entitlement to judgment as a matter of law. See Viola v. Philips Med. Sys. of N. Am., 42 F.3d 712, 716 (2d Cir. 1994). The relevant governing law in each case determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). No genuinely triable factual issue exists when the moving party demonstrates, on the basis of the pleadings and submitted evidence, and after drawing all inferences and resolving all ambiguities in favor of the non-movant, that no rational jury could find in the non-movant's favor. Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 86 (2d Cir. 1996) (citing Fed.R.Civ.P. 56(c)).

To defeat a summary judgment motion properly supported by affidavits, depositions, or other documentation, the non-movant must offer similar materials setting forth specific facts that show that there is a genuine issue of material fact to be tried. Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996). The non-movant must present more than a "scintilla of evidence, " Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 178 (2d Cir. 1990) (quoting Anderson, 477 U.S. at 252), or "some metaphysical doubt as to the material facts, " Aslanidis v. U.S. Lines, Inc., 7 F.3d 1067, 1072 (2d Cir. 1993) ( quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986)), and cannot rely on the allegations in his or her pleadings, conclusory statements, or on "mere assertions that affidavits supporting the motion are not credible." Gottlieb v. Cnty. of Orange, 84 F.3d 511, 518 (2d Cir. 1996) (internal citations omitted).

The district court, in considering a summary judgment motion, must also be "mindful of the underlying standards and burdens of proof, " Pickett v. RTS Helicopter, 128 F.3d 925, 928 (5th Cir. 1997) (citing Anderson, 477 U.S. at 252), because the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions. Brady v. Town of Colchester, 863 F.2d 205, 211 (2d Cir. 1988). Where the non-moving party will bear the ultimate burden of proof on an issue at trial, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the non-movant's claim. Id. at 210-11. Where a movant without the underlying burden of proof offers evidence that the non-movant has failed to establish her claim, the burden shifts to the non-movant to offer "persuasive evidence that [her] claim is not implausible." Id. at 211 (citing Matsushita, 475 U.S. at 587).

Summary judgment is generally inappropriate where questions of the defendant's state of mind are at issue, Gelb v. Bd. of Elections of the City of N.Y., 224 F.3d 149, 157 (2d Cir. 2000), and should thus be granted with caution in employment discrimination cases. Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). Nonetheless, "summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 40 (2d Cir. 1994). "The summary judgment rule would be rendered sterile... if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985). "[T]he salutary purposes of summary judgment - avoiding protracted, expensive and harassing trials - apply no less to discrimination cases than to commercial or other ...

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