BLUM v. NEW YORK STOCK EXCHANGE

Monday, June 4, 2001

Supreme Court

Nassau County

Justice Bucaria

BLUM v. NEW YORK STOCK EXCHANGE“Plaintiff, William J. Blum, moves for summary judgment. Defendant, New York Stock Exchange, Inc., cross-moves to dismiss the complaint or for an order granting it summary judgment.

Plaintiff commenced this action for damages allegedly sustained by defendant’s discriminatory conduct in the removal of plaintiff’s stool from his booth on the defendant’s trading floor. Plaintiff contends he was denied the benefits of a place of public accommodations, the trading floor, because of his medical problems, a hip replacement and Crohn’s disease, which requires him to sit from time to time. Plaintiff contends defendant’s conduct is in violation of the New York Human Rights Law ?§296(2)(a). Plaintiff states his stool, which had been in place for more than thirteen years without incident, was removed pursuant to a change in the trading floor safety plan by a bulletin dated December 26, 1995, that sought to clear the trading floor of all free-standing chairs and stools in case of fire, but allowed garbage cans to remain. Plaintiff argues the changes were not done by a professional safety expert/consultant and the bulletin was an illegal act of the Subcommittee on Floor Facilities since the Subcommittee charter did not permit the Subcommittee to implement such procedures.

Plaintiff notes his efforts to obtain a reasonable accommodation for his medical condition were not successful. Defendant did ultimately install a pivot seat in March, 2000. Plaintiff alleges the pivot seat design caused plaintiff further pain and suffering.

Plaintiff states he has a medical disability, the defendant’s trading floor is a place of public accommodation, defendant failed to provide plaintiff with a reasonable accommodation for seating at his booth, defendant retaliated against plaintiff for bringing this action. Defendant’s policy of removing stools from the trading floor discriminated against plaintiff and the policy was illegal.

Defendant states the policy of removal in the major evacuation routes on the trading floor was instituted to improve safety conditions for the 3,000 persons working there, not to discriminate against plaintiff.

Defendant argues the public accommodation provision of the Executive Law does not require public accommodations provide “reasonable accommodations” or make special efforts to accommodate disabled individuals. Defendant notes it offered to relocate plaintiff but plaintiff rejected each of the options and alternatives offered. Defendant contends in absence of discriminatory animus, summary judgment should be granted to defendant.

Defendant states chairs and stools on the trading floor had been permitted to those who submitted documentation of a medical need for a chair or stool. Defendant argues due to the confined space, the large number of people that work on the trading floor, and the potential for trouble (terrorist attacks, fire, etc.), emergency evacuation and fire safety procedures are important. Defendant notes specific personnel are employed to evaluate and re-evaluate safety procedures. Defendant uses fire drills to remove physical impediments to evacuation. In December, 1995, defendant’s Subcommittee on Security/Safety recommended to the defendant’s Subcommittee on Floor Facilities to prohibit ftee-standing chairs and stools from major evacuation routes since unencumbered routes are important to a timely evacuation. Thereafter, all chairs and stools in the major evacuation areas were removed without exception. Defendant offered relocation or retractable seats to those affected. Defendant notes plaintiff’s booth is located in a major evacuation route. Plaintiff’s request to return his chair was denied by the Subcommittee on Floor Facilities.

Defendant notes plaintiff did not follow the appropriate internal administrative remedies when his application and appeal thereto were turned down. Defendant states it offered plaintiff to relocate (ten to twelve feet from his current, original location) and install a retractable seat. Plaintiff turned down both options. Defendant instructed its engineers to design a “pivot seat” to accommodate plaintiff and his clerk. Defendant only asked plaintiff to pay for the cost of construction of the seat ($1,500.00-$1,800.00) while defendant would pay for the custom design and installation of the pivot seat, Plaintiff refused to pay and commenced this action.

In December, 1999, plaintiff resubmitted his request for supplemental seating. Defendant, after it was determined the request for the “pivot seat”, installed such a seat.

Defendant notes plaintiff’s first complaint was dismissed but he was permitted to file an amended complaint but limited only to a cause of action based on the Executive Law.

Defendant contends, after the extensive discovery (deposition of nine witnesses and 1,500 pages of documents), there is no evidence of defendant discriminating against plaintiff due to his disability.

As to the Executive Law, defendant argues, it prohibits intentional discrimination but it does not require a public accommodation to make affirmative or special efforts to provide accommodations to individuals with disabilities. Defendant notes it has not refused, withheld from or denied plaintiff the use of its facilities on account of his disability.

Defendant contends it has complied with the employment provisions of the Americans with Disabilities Act (“ADA”), 42 USC ?§12111, which requires reasonable accommodations. Defendant notes the ADA is not pled and it is not applicable since plaintiff is not an employee of defendant. Plaintiff holds an equity interest in defendant and has a trading right.

Under the Executive Law ?§?§292 and 296, a party is required to refrain from discriminating against disabled persons in places of public accommodations, but it was not required to make special efforts to take affirmative action to accommodate the disabled. (Eastern Paralyzed Veterans Association, Inc. v. Metropolitan Transit Authority, 79 AD2d 516, app dsmd 52 NY2d 895.)

Standards for adjudicating disparate treatment employment discrimination claims brought under Executive Law ?§290 et. seq. are firmly established. The plaintiff must first establish a prima facie case of discrimination. Once the plaintiff has met the initial burden, the burden shifts to the defendant to offer a legitimate, non-discriminatory reason for the challenged action and the plaintiff must carry the ultimate burden of persuasion by demonstrating by a preponderance of the evidence that improper discrimination was a determinative factor motivating the employer’s conduct. (St. Mary’s Honor Center v. Hicks, 509 U.S. 502.)

Once an employer articulates a legitimate non-discrimination for its actions, the burden shifts back to the plaintiff to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination. (Miller Brewing Company v. State Division of Human Rights, 66 NY2d 937.)

The Court agrees with defendant that plaintiff must show defendant’s reason for the removal of the chairs”to improve safety conditions on defendant’s trading floor”is false and the real reason for the defendant’s action was disability discrimination. (Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 113.)

Plaintiff’s argument that garbage cans are permitted in the evacuation zone and his chair is unavailing. Clearly, with garbage all over the floor as opposed to in-cans, the problem would be much worse without the cans (see Exhibit 28, pages 45, 92, 105-106, annexed to plaintiff’s motion). Plaintiff can dispute the credentials of defendant’s expert, but logic dictates that garbage spread out over the exchange floor provides a greater hazard than the garbage cans.

A plaintiff must offer admissible evidence of circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive. (Cronin v. Aetna Life Insurance Company, 46 F3d 196.)

Here, plaintiff has not done this. He merely contends in the most conclusory fashion that the Bulletin of December 1995 was not properly researched and did not include feedback from members due to the consternation it would cause and the plaintiff’s medical disability (and others) was consciously disregarded and only the issue of downsizing of excess space was considered.

Here, plaintiff and a thousand plus others had access to the trading floor. Defendant sought to remove all chairs and stools in certain evacuation areas. Defendant (and plaintiff readily admits this) sought to accommodate plaintiff. The record also reflects defendant sought to reasonably accommodate Plaintiff.

The single alternative that plaintiff insists he was legally entitled to”maintaining a stool in a major evacuation route”was not reasonable as per the safety threat posed therein nor was it required under the Executive Law standards.

Plaintiff does not raise a jury issue in a discrimination action merely by showing that the offending decision was arbitrary or unsupported by the facts. (Grey v. New England Telephone & Telegraph Company, 792 F2d 251.) Plaintiff cannot meet his burden of proving pretext simply by refuting or questioning the defendant’s articulated reason. (Dea v. Look, 810 F2d 12.)

Plaintiff cannot create an issue by attacking the procedures by which the challenged determination was made. (See Siano v. Haber, 40 F.Supp.2d 516, affd 201 F3d 432.) A deviation from procedure, without more, does not constitute evidence of discrimination. (Bass v. Board of County Commissioners, 38 F.Supp. 1001).

While defendant contends the decision to eliminate the chairs from major evacuation routes were procedurally correct (see defendant’s memorandum of law, p. 16), it does not, based on the record herein, show a viable hint of discrimination on the part of defendant.

Plaintiff has offered no evidence to suggest that any irregularities in the evacuation plan were motivated in any way by plaintiff’s disability.

The fact that plaintiff’s clerk is blocked from gaining access to the telephone, etc. and from writing on the desk while plaintiff is seated in front of the booth only shows plaintiff and his clerk must work together or seek a better location at his booth for the chair. This does not constitute discrimination.

Plaintiff notes he located one other “illegal” chair, i.e. a tethered stool, on the trading floor (see the photograph in Exhibit A following plaintiff’s affidavit annexed to plaintiff’s reply affirmation). Plaintiff alleges it belongs to one James Gallagher. Mr. Gallagher was allegedly the co-chairman of the security/safety committee and allegedly the co-author of the memorandum banning tethered chairs/stools from the major evacuation areas.

This does not show plaintiff is being treated differently due to his medical disability. It just shows the picture of one chair someone placed on the trading floor allegedly in violation of the no chairs ban. Query: Did plaintiff file a complaint (did anyone) as to the single chair?

Under the Federal Americans with Disabilities Act, it is the employer’s prerogative to choose reasonable accommodation for a disabled worker, but the employer is not required to provide the particular accommodation that the employee requests. (Rehling v. City of Chicago, 207 F3d 1009).

Here, plaintiff does not plead a violation of the ADA, and plaintiff has not established there existed an employer/employee relationship, but defendant has made efforts at reasonable accommodations.

Plaintiff has not established that the removal of his free standing stool/chair occurred under circumstances giving rise to an inference of discrimination. There is nothing in the record to support plaintiff’s claim that the removal of plaintiff’s chair/stool was the product of purported discrimination practices by defendant or its agents.

On the issue of public accommodations, a commodities exchange trading floor has been held to be a place of public accommodation; the hallmark of a “private” place within the meaning of the Human Rights Law is its selectivity or exclusivity and persons seeking benefit of the exemption have the burden of establishing that their place of accommodation is distinctly private. (D’Amico v. Commodities Exchange, Inc., 235 AD2d 313).

The Court of Appeals has noted that the broad and inclusive language of the prefatory sentence of Executive Law ?§229(9) and the legislative history of the statement indicate that the phrase “place of public accommodation” is intended to be interpreted liberally. (Matter of Cahill v. Rosa, 89 NY2d 14).

However, this matter has sacrificed enough trees in the large paper record generated herein. The Court is not required to reach the issue of whether the defendant’s trading floor is or is not a place of public accommodation.

The standards of summary judgment are well settled. A court may grant summary judgment where there is no genuine issue of a material fact, and the moving party is, therefore, entitled to judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320). Thus, when faced with a summary judgment motion, a court’s task is not to weigh the evidence or to make the ultimate determination as to the truth of the matter; its task is to determine whether or not there exists a genuine issue for trial (Miller v. Journal-News, 211 AD2d 626). Thus, the burden on the moving party for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (Ayotte v. Gervasio, 81 NY2d 1062).

In terms of summary judgment defendant has met its burden. Plaintiff has not.

Plaintiff’s opposing assertions rest upon a series of conclusory allegations which fall to generate a triable issue of fact. (Zuckerman v. City of N.Y., 49 NY2d 557; Glanetz v. North Shore University Hospital, 228 AD2d 490). A shadowy semblance of an issue or bald conclusory allegations, even if believable, are insufficient to defeat a motion for summary judgment. (Polanco v. City of New York, 244 AD2d 322).

Accordingly, defendant’s cross-motion for summary judgment is granted. Plaintiff’s motion for summary judgment is as moot.