Nettles v. LSG Sky Chefs

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: WILLIAM F. MASTRO
• Citation: Nettles v. LSG Sky Chefs, 94 A.D.3d 726, 941 N.Y.S.2d 643, 2012 N.Y. Slip Op. 2472 (N.Y. App. Div. 2012)
• Decision Date: 03 April 2012
• Parties: Michael NETTLES, appellant, v. LSG SKY CHEFS, et al., respondents.

2012 N.Y. Slip Op. 02472

94 A.D.3d 726

941 N.Y.S.2d 643

Michael NETTLES, appellant,

v.LSG SKY CHEFS, et al., respondents.

Supreme Court, Appellate Division, Second Department, New York.

April 3, 2012.

Gregory S. Watts, Brooklyn, N.Y. (Alvin Pittman of counsel), for appellant.

Seyfarth Shaw, LLP, New York, N.Y. (Paul Galligan, Anjanette Cabrera, and Courtney S. Taymour of counsel), for respondents.

WILLIAM F. MASTRO, A.P.J., CHERYL E. CHAMBERS, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.

In an action to recover damages for employment discrimination on the basis of race, harassment, and unlawful retaliation in violation of Executive Law § 296, and to recover damages for common-law fraud, the plaintiff appeals from an order of the Supreme Court, Queens County (Hart, J.), dated July 2, 2010, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was for summary judgment dismissing the first cause of action, which alleged employment discrimination on the basis of race, and substituting therefor a provision denying that branch of the defendants' motion; as so modified, the order is affirmed, without costs or disbursements.

In November 1997, the plaintiff, an African–American, while employed as a Vice President of Manufacturing Operations for Beech–Nut Nutrition Corporation (hereinafter Beech–Nut), was solicited for a position at John F. Kennedy International Airport (hereinafter JFK) with the defendant LSG Sky Chefs (hereinafter LSG), a food service company that provides prepared foods to airlines. The position was identified as “Vice President Operations–JFK,” with an annual base salary of $125,000. In addition, LSG offered the plaintiff a cost of living allowance for his first four years of employment. LSG sent a letter to the plaintiff memorializing the terms of its offer. LSG's offer letter did not indicate that the plaintiff was assigned a certain grade level within the company for the purpose of salary and benefits. Upon his hire, the plaintiff was the only African–American vice president in the LSG organization.

When the plaintiff commenced his employment with LSG in December 1997, a memorandum was circulated announcing that he was joining LSG as a “Vice President Designate.” The plaintiff was not informed prior to accepting employment with LSG that he would be denominated only as a “Designate.” The memorandum indicated that the plaintiff would report directly to John VanDervoort, “Vice President, Operations.” An LSG organizational chart for LSG's “Core Operations” and another for LSG's Corporate Structure showed that VanDervoort was the Vice President for JFK on the same executive level as Pepe Pinto, who was Vice President for Dallas, Bill Andres, who was Vice President for Chicago, John Dye, who was Vice President for Los Angeles International Airport, and the defendant Dennis Mancini, who was Vice President for Miami.

Thereafter, in April 1998, LSG announced that the plaintiff would be assuming the role of “Vice President Operations for JFK and JFK–I,” replacing VanDervoort, who was leaving LSG. The plaintiff's salary and benefits did not change to reflect that he was assuming VanDervoort's position.

In July 1998, Mancini, who commenced his employment with LSG in 1996, was appointed to the position of “Vice President, Core Operations–New York,” overseeing JFK and LaGuardia Airports. As a result, he became the plaintiff's direct supervisor. The plaintiff claims that, over the next two years, Mancini repeatedly undermined, humiliated, and disrespected him.

In 1999, the plaintiff discovered that his base salary was lower than that of other vice presidents who had the same or lesser responsibilities than he had. He also discovered that he had been offered fewer stock options than other vice presidents and that it had been decided, during a meeting attended by certain vice presidents and from which he had been excluded, that he would not be included in the “Core Vice President” bonus pool for 1998 bonuses, but, rather, would be included in the “New York Market” bonus pool. In April 1999, the plaintiff made a complaint to LSG about the pay disparity, his exclusion from the vice presidents' bonus pool, and Mancini's treatment of him. In October 1999, the plaintiff also requested and was promised a fixed cost-of-living adjustment (hereinafter COLA), but was later denied that adjustment.

In November 1999, the plaintiff requested that Mancini address a situation about which the plaintiff was informed in which racial comments were made by another employee. According to the plaintiff, Mancini's response to the incident was insensitive and inappropriate and was indicative of Mancini's discriminatory animus towards African–Americans in general.

In January 2000, the plaintiff retained an attorney to communicate with LSG about its investigation into the plaintiff's complaints. In March 2000, the plaintiff applied for a position overseeing the Los Angeles market, but did not get it. In June 2000, LSG announced that the plaintiff was appointed to the position of “Vice President Core Operations, JFK.” Despite this promotion, he was to continue to report to Mancini.

In September 2000, the plaintiff applied for and subsequently obtained a position as the vice president overseeing the Florida core market. His annual base salary increased to $158,500.

In March 2001, the plaintiff commenced this action against LSG and Mancini alleging employment discrimination based on race, a hostile work environment, and unlawful retaliation in violation of Executive Law § 296, as well as common-law fraud. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the defendants' motion. The plaintiff appeals, and we modify.

In order to establish entitlement to judgment as a matter of law dismissing the first cause of action, which alleged discrimination based on race in violation of Executive Law § 296(1)(a), the “defendants [had to] demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual” ( Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305, 786 N.Y.S.2d 382, 819 N.E.2d 998; see Morse v. Cowtan & Tout, Inc., 41 A.D.3d 563, 838 N.Y.S.2d 162; Cesar v. Highland Care Ctr., Inc., 37 A.D.3d 393, 394, 829 N.Y.S.2d 236; DelPapa v. Queensborough Community Coll., 27 A.D.3d 614, 810 N.Y.S.2d 674; Hemingway v. Pelham Country Club, 14 A.D.3d 536, 789 N.Y.S.2d 178). The defendants established their prima facie entitlement to judgment as a matter of law dismissing the first cause of action by submitting evidence that LSG had legitimate nondiscriminatory reasons for the difference in pay and stock options between the plaintiff and other vice presidents, the denial of the plaintiff's request for a fixed COLA, and the plaintiff's placement in the New York Market pool versus the Core Vice President bonus pool in 1998. They explained that the reason for the difference in pay and stock options was that the plaintiff was a grade-level 23 executive reporting to Mancini, who was a grade-level 24 executive and, therefore, the plaintiff was comparing himself to individuals who held the job title of “Vice President/Core Operations.” They also provided evidence that LSG amended its COLA policy in 1996 prior to the plaintiff's employment, so that all new COLAs were required to decline to zero over a four-year period and, therefore, the only employees with fixed COLAs were those hired prior to the policy change. As for the bonus pool, the defendants showed that the plaintiff was placed in the New York Market pool because he was a grade-level 23 executive and that the Core Vice President bonus pool only included the vice presidents of various “Core” markets, such as Mancini, who reported to “Core Markets” Vice President Kevin Bruce.

However, the Supreme Court improperly determined that the plaintiff failed to raise a triable issue of fact with respect to that branch of the defendants' motion which was for summary judgment dismissing the first cause of action. The plaintiff submitted evidence that he assumed VanDervoort's position as a Core Vice President, which required him to report to a Group Vice President. Further, VanDervoort had been a grade-level 24 executive. The plaintiff also presented organizational charts which showed that VanDervoort was on the same executive level as...