El Boutary v. City of N.Y.

• Decision Date: 26 December 2018
• Docket Number: 1:18-CV-3996 (ARR) (JO)
• Parties: Ahmad El Boutary, Plaintiff, v. The City of New York, et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

Ahmad El Boutary, Plaintiff, v. The City of New York, et al., Defendants.

1:18-CV-3996 (ARR) (JO)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

December 26, 2018

Not for Publication

Opinion & Order

ROSS, United States District Judge:

The plaintiff, a New York City for-hire-vehicle driver, had his taxicab license summarily suspended after the press reported that he had ejected a same-sex couple from his car. He fought the suspension, and received his license back about a month later, after an administrative law judge credited his version of the facts over his passengers'. Meanwhile, he brought suit against the city, New York City Taxi and Limousine Commission Chair Meera Joshi, TLC Deputy Commissioner of Public Affairs Allan Fromberg, TLC Prosecution Unit Assistant Commissioner Mohammed Akinlolu, and TLC Supervising Attorney Mark Wheeler on a number of claims relating to the summary suspension of his license. The plaintiff now seeks a ruling from this court that the suspension of his license violated his due-process rights as well as TLC regulations. At the same time, the defendants seek to dismiss the complaint in its entirety. For the reasons discussed below, I find that there is an insufficient record to grant summary judgment on any of the claims, and I dismiss certain of the plaintiff's causes of action for failure to state a claim.

BACKGROUND

On June 9, 2018, two women hired the plaintiff, then operating as a driver for the Uber ridesharing service, to drive them from a bar in Brooklyn to another bar in Manhattan. Defs.' 56.1 Resp. ¶ 12, ECF No. 42. The women had been drinking, and at some point during the ride kissed. See id. ¶¶ 13, 37. What else happened in the car is a matter of considerable dispute; according to the plaintiff, "the women were drunk, kissing repeatedly and aggressively and refused to stop when he asked them to do so." Am. Compl. ¶ 18, ECF No. 12.¹ Whatever the case, after crossing into Manhattan, the plaintiff prematurely parked the car and asked his passengers to get out. Defs.' 56.1 Resp. ¶ 14.

The passengers did not welcome this suggestion, and all three individuals were soon arguing on the sidewalk, in an exchange that one of the passengers, Alex Iovine, partially captured with her cell-phone camera. See id. ¶ 15; Alex Iovine, Lesbian Couple Says Uber Driver Kicked Them Out over a Kiss, N.Y. Post (June 11, 2018), http://players.brightcove.net/4137224153001/ed38fae1-4db1-4308-8095-399a04010bc1_default/index.html?videoId=5796338363001.² The video begins with the plaintiff being asked, "is there an issue?," to which he responds that he told the passengers "[the] first time, don't do it" but they "did it again." Iovine, supra; see also Hr'g Tr. 77, ECF No. 37-3. The plaintiff and the passengers then argue about whether kissing is allowed in Uber vehicles. See Hr'g Tr. 77-79; Iovine, supra. Eventually, the plaintiff seems to realize that he is being recorded, and he says "don't" while reaching out his arm—evidently toward the other passenger, Emma Pichl, who is outside the frame. See Iovine, supra; see also Hr'g Tr. 79.³ Then, while the plaintiff's hand and Pichl are out of view, Iovine says, "get off of her phone; don't fucking touch her," and Pichl says, "don't fucking touch my phone." Iovine, supra; see also Hr'g Tr. 79. Next, Iovine promises the plaintiff that she's "gonna get [him] fired." Iovine, supra; see also Hr'g Tr. 79. The passengers disagree with each other over whether to report the plaintiff to Uber or to call the police, to which the plaintiff ultimately says, "report me, report me, I don't give a shit." Iovine, supra; see also Hr'g Tr. 80. All three individuals are clearly agitated throughout the incident, and they all occasionally raise their voice, but I would not characterize any of the three as yelling. See Iovine, supra.

Iovine uploaded the video to the Web on June 10, 2018, and by the next day both the New York Daily News and the New York Post had published stories on the incident online, with copies of the video embedded in their websites. Defs.' 56.1 Resp. ¶ 15. Their coverage highlighted that the passengers were a "lesbian couple" and reported that they were kicked out of the car "for kissing." Press Reports 1, 6, 8, ECF No. 37-6.

In reporting the story, the tabloids reached out to the TLC for comment. See Defs.' 56.1 Resp. ¶¶ 16-17. The Post quoted defendant Fromberg, who is responsible for TLC public relations, as saying that "[a] driver is most definitely not allowed to do such a thing. There is a list of circumstances that are grounds for refusing service to a passenger, and what happened is most definitely not among them." Id. ¶ 17; Press Reports 7. Fromberg was also quoted by CNN as saying that "[the] blatantly discriminatory behavior described by the complainant is repugnant, and will not be tolerated in the City of New York." Defs.' 56.1 Resp. ¶ 17; Press Reports 11.

After reading about the incident in the press, TLC officials decided to investigate and contacted the passengers. See Defs.' 56.1 Resp. ¶¶ 18, 22. What the passengers told the TLC is not entirely clear. Iovine later testified at an administrative hearing that she "might have" told "[t]he TLC that [the plaintiff] grabbed [her] girlfriend." Hr'g Tr. 107.⁴ Pichl's testimony at the hearing was similarly ambiguous:

Q: Did your girlfriend tell the TLC that [the plaintiff] used physical force against you?

A: Well, he was across there, trying to come at my arm again, like I said before. Yeah, so we said that.

Id. at 52. By contrast, the amended complaint alleges that "the passengers did not tell the TLC that Mr. El Boutary grabbed the passenger's arm, or that he cursed at the passenger." Am. Compl. ¶ 51.

Whatever was said, a TLC "For Hire Vehicle Complaint" report was generated in the afternoon of June 11, 2018, in the name of Alex Iovine. See TLC FHV Complaint, ECF No. 37-7. The details of the complaint, in their entirety, are as follows: "driver abruptly pulled over and kicked passenger and her girlfriend out of the car. He yelled at them for being disrespectful and inappropriate because of pecked [sic] on the lips." Id. Defendant Wheeler explained at the administrative hearing that this complaint "wasn't filed the day of" the incident but rather "[t]he complaint was based upon the press" (Hr'g Tr. 7)—"[a]nother employee of the TLC, Marina Gubenko, spoke to the witnesses as a preliminary matter to initiate the 311 complaint" (id. at 15). Iovine confirmed at the hearing that she did not file a complaint with the TLC and testified that she did not recognize the complaint report. See id. at 104-05.

On June 12, 2018, the TLC served the plaintiff with a notice stating that, "pursuant to TLC Rule 68-15(a)(1), [his] TLC license was SUSPENDED on June 12, 2018, based upon the Chairperson's determination that emergency action [was] required to insure public health or safety."⁵ Directive & Notice of Summ. Suspension, ECF No. 31-1;⁶ see Defs.' 56.1 Resp. ¶ 21. The only specific allegations contained in the notice were that the plaintiff "refuse[d] to provide service to a passenger on the basis of her sexual orientation." Directive & Notice of Summ. Suspension. The notice was signed by Wheeler (see id.), who stated at the administrative hearing: "In terms of the suspension policy and the choice to proceed as a revocation matter, that was, I guess, [defendant] Mohammed Akinlolu, my boss. But I don't know who maybe told him that it should be handled that way. He, of course, has bosses higher up" (Hr'g Tr. 16). The plaintiff alleges that the TLC chair, defendant Joshi, "made no determination that Mr. El Boutary's licensure presented any threat" but that "the decision to suspend was made by Mr. Akinlolu, Mr. Wheeler's supervisor." Am. Compl. ¶¶ 36, 43.

The TLC then sent the plaintiff another letter, dated June 13, 2018, informing him that the TLC had "initiated a Petition against [him]." Defs.' 56.1 Resp. ¶ 26; Notice of Settlement Conf. & Pet. 1, ECF No. 37-9. The petition attached to that letter recited the various violations alleged to have been committed by the plaintiff; namely, that he "acted against the best interests of the public by refusing to provide service to a passenger on the basis of sexual orientation"; that he "threatened, harassed, and abused a passenger by yelling and cursing at the passenger"; that he "used physical force against a passenger by grabbing at that passenger[']s phone, and swinging his hand at the passenger"; and that he "refused to provide service to a passenger after accepting a prearranged trip." Notice of Settlement Conf. & Pet. 2. This petition was dated June 12, 2018, and signed by one Andrew Rabin, a TLC attorney, on behalf of Akinlolu. See id. at 3.

Another letter from the TLC to the plaintiff, dated June 15, 2018, notified him that a hearing regarding the summary suspension of his license was scheduled for June 21, 2018. See Notice of Rescheduled Summ. Suspension Hr'g 1, ECF No. 37-8. Attached to this letter was another petition, also signed by Rabin on behalf of Akinlolu, and dated June 13, 2018. See id. at 3. This petition contained three allegations:

1. After accepting a prearranged trip and initiating that trip, [the plaintiff] refused to continue to provide service to a passenger on the basis of that passenger's sexual orientation.

2. [The plaintiff] grabbed the passenger's arm and grabbed at the passenger[']s cellular phone.

3. [The plaintiff] cursed at the passenger, argued with the passenger and yelled at the passenger.

Id. "Accordingly," the petition concluded, "the continued licensure of [the plaintiff] would constitute a direct and substantial threat to public health or safety." Id.

The hearing took place, as scheduled, on June 21, 2018, at the city Office of Administrative Trials and Hearings. Defs.' 56.1 Resp. ¶ 30. Pichl, Iovine, and the plaintiff all testified at the hearing, Wheeler represented the TLC, and Iovine's video of the incident was...