Powell v. Delta Airlines

• Decision Date: 06 November 2015
• Docket Number: No. 15–CV–2554 (MKB).,15–CV–2554 (MKB).
• Parties: Mychael POWELL, Plaintiff, v. DELTA AIRLINES, Defendant.
• Court: U.S. District Court — Eastern District of New York

145 F.Supp.3d 189

Mychael POWELL, Plaintiff,

v.DELTA AIRLINES, Defendant.

No. 15–CV–2554 (MKB).

United States District Court, E.D. New York.

Signed Nov. 6, 2015.

Mychael K. Powell, Jamaica, NY, pro se.

MEMORANDUM & ORDER

MARGO K. BRODIE

, District Judge:

On April 10, 2015, Plaintiff Mychael Powell, proceeding pro se, commenced this action in the United States District Court for the Southern District of New York against Defendant Delta Airlines, his former employer.¹ (Compl., Docket Entry No. 2.) By Transfer Order dated May 4, 2015, the action was transferred to this Court. (Transfer Order, Docket Entry No. 4.) Plaintiff alleges that he was wrongfully discharged by Defendant and asserts claims of discrimination on the basis of age and race under the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq.

(“NYSHRL”). (Compl. 2, 7.² ) Plaintiff seeks damages in the amount of $120,000 for lost wages, bonuses, and benefits and “additional compensation for infliction of emotional distress” and legal fees. (Id. at 8.) Plaintiff also seeks reinstatement. (Id. ) For the reasons set forth below, the Court finds that Plaintiff has sufficiently alleged a claim of discrimination on the basis of age under the NYSHRL but has failed to allege discrimination on the basis of race under the NYSHRL. Plaintiff's claim of discrimination on the basis of race is dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Plaintiff is granted leave to file an amended complaint within thirty (30) days of the date of this Memorandum and Order asserting race discrimination claims under the NYSHRL or claims of discrimination under federal law.

I. Background

Plaintiff is an African–American male born on January 6, 1959.³ (Compl. 4.) Plaintiff alleges that in 2006, he was hired by Defendant to work as an Airport Customer Service Representative at JFK International Airport (“JFK”). (Id. ) While he was employed by Defendant, Plaintiff was the only African–American male “working in his area on his shift (the morning shift) out of over three hundred employees.” (Id. at 4–5.)

Plaintiff alleges that Defendant has a program in place pursuant to which employees are “offered an incentive package to retire” upon turning fifty-five years old. (Id. at 4.) In “early 2012,” at which time Plaintiff had recently turned fifty-three, Aida Carrasquillo, Plaintiff's supervisor, asked Plaintiff “what his intentions were” with respect to the retirement incentive package and whether he was planning to retire when he turned fifty-five. (Id. at 5.) In response, Plaintiff “indicated his desire to continue working and that he would not be retiring.” (Id. )

Plaintiff alleges that he performed his job in a satisfactory manner throughout the course of his employment with Defendant and that he “had no performance issues with Delta” prior to turning fifty- five. (Id. at 4.) After Plaintiff advised Carrasquillo that he was not planning to retire at age fifty-five, however, Plaintiff was “subjected to a hostile work environment” and “adverse actions ... designed to discriminate against [Plaintiff] due to his age” and either “push him” to retire or “justify his termination.” (Id. at 5.) Plaintiff further alleges that from August of 2012 to October of 2013, he was treated with “general hostility,” which he had not been subjected to prior to his conversation with Carrasquillo, and Defendant began “over-scrutiniz[ing] and criticiz[ing]” Plaintiff's job performance. (Id. )

Specifically, Plaintiff alleges that on August 26, 2012, he received a verbal warning regarding flight delays that had been caused by computer and gate issues over which Plaintiff had no control. (Id. ) Thereafter, on October 29, 2013, Plaintiff received a “Corrective Action Notice” regarding two alleged incidents, both of which were fabricated. First, the notice falsely alleged that on August 4, 2013, Plaintiff was “[un]aware of a flight and radio communication.” (Id. ) Second, the notice falsely alleged that, “as a member of [Defendant's] Red Coat customer service program,” Plaintiff had violated protocol “related to a stolen / missing pouch.” (Id. ) The second alleged violation was reported by Carrasquillo and resulted in Plaintiff being “stripped of his Red Coat program duties.” (Id. )

Plaintiff also received a “Final Corrective Action Notice” from Performance Leader Ulysses Duenas that falsely alleged that Plaintiff had “committed a safety violation” in the course of meeting an aircraft upon its arrival at JFK on January 20, 2014.⁴ (Id. ) Duenas alleged that, in “providing a jet-bridge to the incoming flight,” Plaintiff violated safety protocol by positioning the jet-bridge less than six inches from the plane, which was too close. (Id. at 5–6.) The “Final Corrective Action Notice” also indicated that on February 12, 2014, Duenas reprimanded Plaintiff because Plaintiff's Port Authority identification card (“Port Authority ID”) had expired as of that date. (Id. at 6.) Plaintiff alleges that he had, however, attempted to resolve the issue with his Port Authority ID on February 11, 2014—the day before its expiration—but the Delta Security Office was unable to assist Plaintiff due to a “delay in processing” and directed Plaintiff to follow up the next day. (Id. ) Plaintiff was therefore not at fault for reporting to work with an expired Port Authority ID on February 12, 2014. (Id. ) Plaintiff was nonetheless disciplined for this alleged infraction as part of Defendant's “effort to paper trail [Plaintiff's] discriminatory termination.” (Id. )

Plaintiff also alleges that, although he was entitled to annual salary increases under his employment contract with Defendant, he did not receive his annual salary increase when it came due on March 6, 2013. (Id. ) Plaintiff did not receive his salary increase until March 27, 2014, after Plaintiff twice contacted Defendant's Payroll Department and spoke with Carrasquillo regarding his salary increase. (Id. ) In each of the years prior to March 6, 2013, Plaintiff had received his annual salary increase without delay. (Id. )

Finally, Plaintiff alleges that on May 20, 2014, he was tasked with meeting a flight arriving from Ireland. (Id. ) Plaintiff had no previous experience with meeting flights arriving from Ireland, and Defendant never trained Plaintiff on the protocol for meeting such flights as opposed to flights arriving from other international points of origin. (Id. ) Plaintiff was also never advised that he was required to follow a different protocol when meeting flights arriving from Ireland. (Id. ) As a result, when the plane arrived Plaintiff directed disembarking passengers to customs in accordance with the generally-applicable protocol for meeting international flights. (Id. ) Plaintiff then received a radio communication from Performance Leader Suzette Desivignes advising him that passengers arriving from Ireland are “pre-cleared” and are therefore not required to go through customs. (Id. ) As a result, Plaintiff ran to the customs area and advised the passengers that they were not required to proceed through customs. (Id. ) At the end of his shift, Plaintiff was called to a meeting with Desivignes and HUB Manager June Reid–Blair wherein Plaintiff was informed that six of the passengers had gone through customs as a result of Plaintiff's error. (Id. at 7.) Although Plaintiff explained that he had not been trained or informed about the protocol for meeting flights arriving from Ireland, Reid–Blair responded that Plaintiff “should have known.” (Id. ) Desivignes and Reid–Blair then told Plaintiff that he was suspended and would be terminated. (Id. ) Plaintiff was then escorted from the building. (Id. )

Plaintiff does not allege that he filed a charge with the New York State Division of Human Rights, the New York City Commission on Human Rights, or the Equal Employment Opportunity Commission (“EEOC”). Plaintiff has not attached a right-to-sue letter from any agency to the Complaint.

II. Discussion

a. Standards of review

i. Rule 12(b)(1)

A district court may dismiss an action for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure

when the court “lacks the statutory or constitutional power to adjudicate it....” Cortlandt St. Recovery Corp. v. Hellas Telecomms., S.À.R.L., 790 F.3d 411, 417 (2d Cir.2015) (quoting Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000) ); Shabaj v. Holder, 718 F.3d 48, 50 (2d Cir.2013) (quoting Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir.2005) ). A plaintiff seeking to bring a lawsuit in federal court bears the burden of establishing subject matter jurisdiction, and in evaluating whether the plaintiff has met that burden, “ ‘[t]he court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff,’ but ‘jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it.’ ” Morrison v. Nat'l Austl. Bank Ltd., 547 F.3d 167, 170 (2d Cir.2008) (citations omitted), aff'd, 561 U.S. 247, 130 S.Ct. 2869, 177 L.Ed.2d 535 (2010). A court may consider matters outside of the pleadings when determining whether subject matter jurisdiction exists. M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2d Cir.2013) ; Romano v. Kazacos, 609 F.3d 512, 520 (2d Cir.2010) ; Morrison, 547 F.3d at 170.

ii. Rule 12(b)(6)

A complaint must plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)

. A claim is plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir.2011) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)

). Although all allegations contained in the complaint are assumed to...