Benzinger v. Nysarc, Inc.

385 F. Supp. 3d 224
CourtDistrict Court, S.D. Illinois
DecidedJune 21, 2019
Docket18 Civ. 2709 (KPF)
StatusPublished
Cited by17 cases

This text of 385 F. Supp. 3d 224 (Benzinger v. Nysarc, Inc.) is published on Counsel Stack Legal Research, covering District Court, S.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Benzinger v. Nysarc, Inc., 385 F. Supp. 3d 224 (S.D. Ill. 2019).

Opinion

KATHERINE POLK FAILLA, District Judge:

Plaintiff Michael Benzinger brings suit against Defendants NYSARC, Inc. New York City Chapter ("AHRC"), CBRE, Inc. ("CBRE"), and Universal Protection Services ("UPS") (collectively, "Defendants") alleging discrimination on the basis of race arising out of several encounters in the lobby of 83 Maiden Lane in lower Manhattan. Plaintiff alleges six causes of action against all Defendants, claiming violations of three provisions of the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code §§ 8-107(4), 8-107(6), and 8-107(7) ; the common-law tort of negligent retention, and two federal anti-discrimination statutes, 42 U.S.C. §§ 1981 and 1985. Defendant UPS moves to dismiss all counts against it on the basis of failure to state a claim. For the reasons set forth in the remainder of this Opinion, the Court grants the motion with respect to Plaintiff's federal claims, the negligent retention claim, and the NYCHRL § 8-107(7) claim, and denies the motion with respect to *229Plaintiff's claims under NYCHRL §§ 8-107(4) and 8-107(6).

BACKGROUND1

A. Factual Background

1. The Parties

Plaintiff is an Asian-American man who resides in Queens, New York. (SAC ¶¶ 2-3). Defendant AHRC is a New York corporation with its principal place of business at 83 Maiden Lane. (Id. at ¶¶ 3-4). Defendant CBRE is a New York corporation that provides building management services to 83 Maiden Lane. (Id. at ¶¶ 6-8). Defendant UPS is a New York limited liability company that contracted to provide security services to 83 Maiden Lane. (Id. at ¶¶ 9-11).

2. The June 21, 2016 Lobby Incidents

On June 21, 2016, Plaintiff entered the lobby of 83 Maiden Lane to make an appointment with Access Community Health Center ("Access"), a tenant of the building. (SAC ¶¶ 13-16, 20). While Plaintiff was in the lobby, a porter, Sammy Rivera, repeatedly uttered "Ni Hao," a Mandarin greeting, to him. (Id. at ¶ 20). Plaintiff informed Rivera that he was Korean, not Chinese, and after Rivera asked how to say hello in Korean, provided the Korean word. (Id. ). Rivera repeated the Korean greeting and then walked to the building's security desk and spoke with Justin Brooks, a UPS employee and the security guard on duty. (Id. ). Plaintiff alleges that within his earshot, Rivera said to Brooks, "That chink says he's not Chinese, he said he's Korean. How can I tell the difference? All chinks look the same." (Id. ). He further alleges that both Rivera and Brooks laughed after this comment. (Id. ). Plaintiff proceeded to visit Access, but, upon returning to the lobby, heard Rivera utter further racial epithets, including "ching chong." (Id. at ¶ 21). Brooks and Rivera laughed together in response to these comments. (Id. ).

3. The June 22, 2016 Report and Lobby Incident

On June 22, 2016, Plaintiff returned to 83 Maiden Lane for an appointment with Access and scheduled a follow-up appointment for August 2016. (SAC ¶ 22). Plaintiff also inquired at the front desk in the lobby where he could file a complaint regarding Rivera's and Brooks's behavior the prior day, and he was directed to AHRC's offices in the building. (Id. ). Plaintiff spoke with Steve Williams, AHRC's employee relations manager, who informed him that Pamela Minkoff, another AHRC employee, would follow up regarding investigating the claims and potential disciplinary action. (Id. ). Upon departing and returning to the lobby, Plaintiff again crossed paths with Rivera and Brooks. (Id. at ¶ 23). Plaintiff states that Rivera glared at him and called out "What's up boss?" to him. (Id. ). Brooks, who was standing nearby remarked *230of Plaintiff, "He ain't gonna say nothing to you" (the "June 22 Remark"), and Rivera and Brooks both laughed. (Id. ). Williams reached out to Plaintiff later that day, and Plaintiff informed him of this additional incident. (Id. at ¶ 24).

4. The AHRC Investigation

Minkoff investigated the incident and spoke with Brooks at some point between June 22, 2016, and July 7, 2016. (SAC ¶ 35). Brooks initially denied that anything had occurred. (Id. ). After receiving an email from Plaintiff, Minkoff informed Dawn Shillingford, a CBRE employee, that she believed that Brooks knew more than to which he had admitted in their prior meeting. (Id. at ¶¶ 34-35). Minkoff and Shillingford met with Rivera on July 7, 2016, to discuss the incident and then spoke with Brooks a second time. (Id. at ¶ 35). After this second conversation, Brooks wrote an incident report on UPS letterhead, in which he provided his description of the incident and its aftermath. (Id. ). He wrote that an individual of Asian descent "came into the building ... and was greeted by the porter in a language that he didn't speak[,] he was offended by the approach. The issue went to [Minkoff]. We had a meeting to discuss the matter." (Id. ).

On July 14, 2016, AHRC concluded its investigation and informed Plaintiff that it could not substantiate his allegations. (SAC ¶¶ 36-44). Plaintiff states that he received an email from Williams in response to this conclusion, in which Williams expressed surprise at the lack of punishment. (Id. at ¶ 42). Plaintiff alleges that he did not attend his August 2016 follow-up appointment at Access, as he feared further racial harassment from Rivera and Brooks. (Id. at ¶ 45).

B. Procedural Background

On February 28, 2018, Plaintiff filed this suit in New York State Supreme Court against AHRC and CBRE, alleging discrimination on the basis of race, and on March 28, 2018, CBRE filed a notice of removal to this Court. (Dkt. #6). On March 18, 2018, Plaintiff filed a First Amended Complaint adding UPS, Brooks's employer, as a defendant. (Dkt. #18). On July 10, 2018, UPS filed a letter requesting leave to file a motion to dismiss the claims against it. (Dkt. #30). On July 31, 2018, the Court held a pre-motion conference, during which it granted Plaintiff leave to file a Second Amended Complaint (the "SAC"), and ordered Defendants to move or otherwise respond to the SAC on or before September 14, 2018. (Dkt. #34).

On August 10, 2018, Plaintiff filed the SAC. (Dkt. #35). On September 14, 2018, Defendants CBRE and AHRC filed answers, and Defendant UPS moved to dismiss all claims against it. (Dkt. #38, 39, 40-21). Plaintiff filed his opposition to UPS's motion on October 15, 2018. (Dkt. #47). UPS replied to Plaintiff's opposition submission on October 29, 2018. (Dkt. #48). Accordingly, the motion is fully briefed and ripe for decision.

DISCUSSION

A. Plaintiff Fails to State a Claim Under 42 U.S.C. §

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385 F. Supp. 3d 224, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benzinger-v-nysarc-inc-ilsd-2019.