The following papers were read on this motion by defendants for an order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint. Papers Numbered Notice of Motion, Affirmation, Exhibits E25-40 Affirmation In Opposition, Exhibits E42-44 Reply Affirmation E45-47 Upon the foregoing papers, it is ordered that this motion is determined as follows: Plaintiff was employed as the manager of defendant Primo Pizza 84, LLC (“Primo Pizza”), a pizza restaurant. Defendants Ari Goodman and Marlene Brill are the sole members of Primo Pizza. Plaintiff’s complaint sets forth five causes of action: hostile work environment discrimination based on national origin (“first cause of action”); retaliation against plaintiff for complaints concerning the hostile work environment by termination from employment (“second cause of action”); negligent hiring, supervision, and retention (“third cause of action”); failure to pay wages (“fourth cause of action”); and failure to pay minimum wage (“fifth cause of action”). The court initially notes that defendant has shown “good cause” for its delay in filing a motion for summary judgment (see Brill v. City of New York, 2 NY3d 648 [2004]). Defendants’ time to file a summary judgment motion was compromised by plaintiff’s failure to submit to a deposition prior to the deadline. Moreover, there is no prejudice to plaintiff. The court will therefore consider the merits of this motion. Summary judgment is “a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues” (Andre v. Pomeroy, 35 NY2d 361, 364 [1974]; see Kwong On Bank, Ltd. v. Montrose Knitwear Corp., 74 AD2d 768 [2d Dept 1980]; Crowley Milk Co. v. Klein, 24 AD2d 920 [3d Dept 1965]). Even the color of a triable issue forecloses the remedy (see Newin Corp. v. Hartford Acc & Indem. Co., 62 NY2d 916 [1984]). The evidence must be construed in a light most favorable to the non-moving party (see Bennicasa v. Garrubo, 141 AD2d 636 [2d Dept 1988]; Weiss v. Gaifield, 21 AD2d 156 [3d Dept 1964]). The proponent of a motion for summary judgment carries the initial burden of presenting sufficient evidence to demonstrate, as a matter of law, the absence of a material issue of fact (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Once the moving party has met its burden, the opponent must produce competent evidence in admissible form to establish the existence of a triable issue of fact (see Zuckerman v. City of New York, 49 NY2d 557 [1980]). The role of the court on a motion for summary judgment is to determine if bona fide issues of fact exist, not to resolve issues of credibility (see Knepka v. Tallman, 278 AD2d 811 [4th Dept 2000]). HOSTILE WORK ENVIRONMENT In order to establish a prima facie claim for hostile work environment, a plaintiff must demonstrate that the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment (Schenkman v. New York Coll. of Health Professionals, 29 AD3d 671, 673 [2d Dept 2006]; see Harris v. Forklift Sys., Inc., 510 US 17 [1993]; Forrest v. Jewish Guild for the Blind, 3 NY3d 295 [2004]). Under the New York City Human Rights Law (NYCHRL), the court considers whether such comments amount to more than “petty slights and trivial inconveniences” (see Williams v. New York City Hous. Auth., 61 AD3d 62, 79-80 [1st Dept 2009]). “Whether an environment is hostile or abusive can be determined by looking at all the circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance’” (Forrest, 3 NY3d at 310-311, quoting Harris, 510 US at 23). The conduct must have altered the condition of the victim’s employment by being subjectively perceived as abusive by the plaintiff, and having created an objectively hostile or abusive environment (id. at 311). Here, plaintiff’s factual allegations, such as that defendants Goodman and Brill would refer to him as a “guido” or “wise guy” or imitate his accent, fall short of establishing that the “‘workplace [was] permeated with discriminatory intimidation, ridicule, and insult…that [was] sufficiently severe or pervasive to alter the conditions of the [plaintiff's] employment and create an abusive working environment’” (Schenkman, 29 AD3d at 673, quoting Harris, 510 US at 21). This court is cognizant that “discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means” (300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 183 [1978]). Nonetheless, as defendants have demonstrated the absence of a prima facie case for national origin discrimination, summary judgment dismissing that cause of action is required (see Zhao v. State Univ. of N.Y., 472 F Supp 2d 289 [ED NY 2007] [mimicking plaintiff's accent and comparing Turkish people to Chinese people were insufficient to establish a hostile work environment]). Indeed, in a similar case, Little v. National Broad. Co., where a defendant’s employee constantly used a “weird Spanish accent” when talking to Hispanic people, and on an occasion described Hispanics as being “very greasy,” the court held that the “comments, standing alone, were not so severe that they could alter the conditions of [plaintiff's] employment. However, when combined with the display of Klu Klux Klan robes and/or [a] noose, these incidents may constitute an objectively hostile environment” (210 F Supp 2d 330, 390 [SD NY 2002]). RETALIATION It is well established that “a claim for retaliatory conduct does not necessarily fail by reason of a subsequent finding that the underlying discrimination complaint, upon which the claim of retaliation is premised, is without merit” (Modiano v. Elliman, 262 AD2d 223, 223 [1st Dept 1999]). Retaliation claims are analyzed under the burden-shifting framework established in McDonnell Douglas (411 US 792 [1973]). In order to establish retaliation, a plaintiff has the initial burden of showing (1) participation in a protected activity, (2) that the defendant knew of the protected activity, (3) adverse employment action, and (4) a causal connection between the protected activity and the adverse employment action (see Dooner v. Keefe, Bruyette & Woods, 157 F Supp 2d 265 [SD NY 2001]). Here, plaintiff failed to demonstrate that his employers took any action that disadvantaged him (see Melman v. Montefiore Med. Ctr., 98 AD3d 107 [1st Dept 2012]) or that defendants retaliated “in any manner” (Farrugia v. North Shore Univ. Hosp., 13 Misc 3d 740, 752 [Sup Ct, NY County 2006]). Although the complaint alleges that plaintiff was fired as a result of his complaints to his employers, plaintiff’s own deposition testimony reflects that he resigned in order to care for his sick father. NEGLIGENT HIRING, SUPERVISION, AND RETENTION In order “[t]o establish a cause of action based on negligent hiring, negligent retention, or negligent supervision, it must be shown that the employer knew or should have known of the employee’s propensity for the conduct which caused the injury” (Shor v. Touch-N-Go Farms, Inc., 89 AD3d 830, 831 [2d Dept 2011]; see Jackson v. New York Univ. Downtown Hosp., 69 AD3d 801 [2d Dept 2010]; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159 [2d Dept 1997]). In this case, defendants established their prima facie entitlement to judgment as a matter of law dismissing the negligent hiring, supervision, and retention cause of action (see Acosta-Rodriguez v. City of New York, 77 AD3d 503; Lisa P. v. Attica Cent. School Dist., 27 AD3d 1080; Ghaffari v. North Rockland Cent. School Dist., 23 AD3d 342). Plaintiff was the manager of Primo Pizza, and the only people with authority to “supervise” him were the owners, defendants Goodman and Brill. FAILURE TO PAY WAGES Labor Law §191 sets forth the time period in which an employer is required to pay wages to an employee. Defendants claim that plaintiff was hired on June 16, 2014, and his first pay period was June 16, 2014 through June 22, 2014, whereas plaintiff claims that he began his employment with defendants in March of 2014. Defendants admit that plaintiff did render certain services before June 16, 2014, however, they claim that plaintiff volunteered “to do some set up tasks for us in anticipation of starting in June as the new manager of the Primo Pizza.” Plaintiff claims that he expected compensation for his work immediately following his interview. The conflicting testimony raises a question of fact as to plaintiff’s actual start date at Primo Pizza, and therefore precludes a grant of summary judgment as to this cause of action. FAILURE TO PAY MINIMUM WAGE Article 19 of the Labor Law is New York’s Minimum Wage Act. As part of the Act, Labor Law §653 allows the Commissioner of Labor to appoint a Wage Board to investigate the adequacy of wages and recommend appropriate wage rates (see Labor Law §653 [1]; see also Ballard v. Community Home Care Referral Serv., Inc., 264 AD2d 747 [2d Dept 1999]). The Wage Board may also recommend that the Commissioner of Labor promulgate overtime rate regulations (Labor Law §655[5][b]). In accordance with this scheme, the Commissioner of Labor enacted 12 NYCRR §142-2.2 which provides as follows: “An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee’s regular rate in the manner and methods provided in and subject to the exemptions of sections 7 and 13 of 29 USC 201 et seq., the Fair Labor Standards Act of 1938 as amended; provided however that the exemptions set forth in section 13 (a) (2) and (4) shall not apply. In addition, an employer shall pay employees subject to the exemptions of section 13 of the Fair Labor Standards Act, as amended, except employees subject to section 13 (a) (2) and (4) of such act, overtime at a wage rate of one and one-half times the basic minimum hourly rate.” Employees paid less than the wage required by the law “may recover in a civil action the amount of any such underpayments, together with costs and such reasonable attorney’s fees as may be allowed by the court, and if such underpayment was willful, an additional amount as liquidated damages” (Labor Law §663 [1]). Here, defendant Goodman avers that plaintiff was paid a weekly salary of $700.00 per week, and at times more, when the minimum wage in New York was either $8.00 per hour (June 2014 to December 31, 2014) or $8.75 per hour (January 1, 2015 to March 2015), and the minimum salary for exempt managerial employees was $656.25 per week (June 2014 to December 31, 2014), or $675.00 per week (January 1, 2015 to March 2015). In opposition, plaintiff failed to raise a triable issue of fact as to whether defendants failed to pay him the minimum wage. Accordingly, the motion is granted solely to the extent that defendants are granted summary judgment and dismissal of plaintiff’s first, second, third, and fifth causes of action. This constitutes the decision and order of the court. Dated: November 5, 2020
