Zaidi v. The Amerada Hess Corp.. .

• Decision Date: 12 July 2010
• Docket Number: No. CV 08-776.,CV 08-776.
• Citation: 723 F.Supp.2d 506
• Parties: Syed ZAIDI, Plaintiff, v. The AMERADA HESS CORP., et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

723 F.Supp.2d 506

Syed ZAIDI, Plaintiff,

v.The AMERADA HESS CORP., et al., Defendants.

No. CV 08-776.

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

July 12, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

Law Offices of Frederick K. Brewington, by: Frederick K. Brewington, Esq., Valerie M. Cartright, Esq., Hempstead, NY, for Plaintiff.

Friedman Kaplan Seiler & Adelman LLP, by: Lance J. Gotko, Esq., New York, NY, for The Amerada Hess Corporation and the Individual Amerada Hess Defendants.

The Office of the Suffolk County Attorney, by: Richard T. Dunne, Esq. Assistant Suffolk County Attorney, Susan A. Flynn, Esq. Assistant County Attorney, Hauppauge, NY, for Suffolk County and the Individual Suffolk County Defendants Suffolk County Department of Law.

MEMORANDUM AND ORDER

WEXLER, District Judge.

This is an action commenced by Plaintiff Syed Zaidi (“Plaintiff”) alleging civil rights and state law causes of action arising out of Plaintiff s arrest and ultimate acquittal of criminal larceny charges. Those charges were brought in connection with allegations of theft from Amerada Hess Corporation (“Hess”), Plaintiff's former employer. In addition to naming the County of Suffolk and several public employees as Defendants, Plaintiff names Hess, and five of his former supervisors and/or co-workers as Defendants (the “Hess Defendants”). Presently before the court is the Hess Defendants' motion, pursuant to Rule 56 of the Federal Rules of Civil Procedure, for summary judgment. ¹

BACKGROUND

I. The Parties

Plaintiff, who is not a citizen of the United States, was born in Pakistan and identifies himself as a Shiite Muslim, In July of 2005, Plaintiff began his employment at a Hess convenience store, located within a Hess gas station in Suffolk County, New York. At that time, Plaintiff was lawfully in this country pursuant to a ten year visa. Plaintiff remained employed by Hess as a sales associate until his termination in February of 2006.

The individual Hess Defendants are Donna Parinello (“Parinello”), Sandy Salit (“Salit”), Robert Lafalce (“Lafalce”), Joann Salentino (“Salentino”) and Rashein Gillard (“Gillard”). Each of these individuals was employed by Hess at the same gas station where Plaintiff was employed. Defendant Parinello was, at all relevant times, a Hess Marketing Representative. Her duties included supervision of thirteen Hess gas stations, including the station where Plaintiff was employed. As part of her job, Parinello was involved in financial audits of the stations that she supervised. Defendant Salentino was an assistant manager, and is alleged to have been Plaintiff's immediate supervisor. The remaining Hess Defendants were co-workers of Plaintiff. All of the Hess Defendants are alleged to have been aware of Plaintiff s race and religion.

II. The Incident Immediately Preceding Plaintiff's Termination and Subsequent Arrest

The Hess store where Plaintiff was employed sold typical convenience items such as soda and cigarettes. The store also sold lottery tickets. Prior to the incident that led to Plaintiff's termination, he was a trusted employee. In fact, Plaintiff received a salary increase in excess of company guidelines six months after he began his employment. As noted, Plaintiff was terminated from his position at Hess in February of 2006. The facts immediately preceding that termination form the basis of his complaint as against the Hess Defendants.

Defendant Parinello states that on February 15, 2006, a quarterly audit was conducted. That audit, undertaken by an outside company, revealed that for the period of November 25, 2005 through February 15, 2006, the Hess station where Plaintiff worked was missing $4,545.84 in revenue from the sale of instant lottery tickets. There is no factual question as to the results of the audit, which are not contested by either side. Plaintiff was identified by Parinello as the party responsible for the shortfall. Parinello states that she reached this conclusion based upon her review of Hess documents revealing that little or no lottery sales had been recorded during Plaintiff's shifts. She explains that this documentation led her to believe that Plaintiff stole the lottery tickets at issue.

Shortly after reviewing the results of the audit, Parinello called Plaintiff and asked him to come to the station. When Plaintiff arrived at the station, Parinello was present, along with Defendants Lafalce and Gillard. Upon his arrival, Plaintiff was accused of stealing the missing $4,545.84. It is at this point that the parties' versions of the facts begin to differ. Parinello states that Plaintiff admitted to the theft. She further states that she told Plaintiff that if he agreed to pay back the missing money, she would not involve the police. Plaintiff is alleged to have agreed to pay back the missing money. He is further alleged to have voluntarily written a statement, in English, acknowledging the theft, and agreeing to repayment. That statement is before the court. It is signed by Plaintiff and indicates Parinello, Lafalce and Gillard as witnesses.

Plaintiff alleges that the Hess Defendants “knowingly and falsely accused” Plaintiff of stealing money. Although he states that he has problems understanding English, Plaintiff acknowledges the existence of the statement in which he agreed to pay back the stolen money, and that the statement was written and signed by him. He states, however, that he was unaware that he was being accused of theft, and was told that if he did not sign the statement he would be held accountable for all shortfalls at the station. He states that he was forced into writing and signing the statement after Parinello, Lafalce and Gillard called him a terrorist, and threatened him with deportation. He further states that he was physically assaulted by Gillard.

There is no question that Plaintiff did not pay back the missing money. There is also no question that on February 17, 2006, one day after Plaintiff was called to the station, Parinello contacted the Suffolk County Police. She wrote and swore to a statement setting forth the facts described above. The statement refers to Plaintiff's alleged agreement to re-pay the stolen money and states that although Plaintiff returned to the station on the agreed-upon date, he did not have the money that he agreed to pay back. Parinello states that she therefore brought the matter to the attention of the police.

Although Plaintiff alleges that the police knew that the statement confessing to the theft was coerced by the Hess Defendants, there is no indication of any contact between Parinello and Suffolk County police prior to February 17, 2006, when Parinello made her statement. Nor is there evidence of any contact between any Suffolk County police officer and any other Hess Defendant prior to February 17, 2006. The criminal trial testimony cited by Plaintiff is not to the contrary. Instead, the record is clear that the contact between the Hess Defendants and the police following February 17, 2006, consists of Parinello testifying as to her version of the facts (consistent with those facts described above) when subpoenaed to appear before a grand jury and at trial, and the response of Hess to requests for documents. As to those requests, Plaintiff argues that Hess knowingly withheld exculpatory documents until the eve of trial. Parinello explains that documents previously thought to have been destroyed were discovered after Hess responded to an initial subpoena. She states that immediately upon discovery of such documents, they were provided to authorities.

Plaintiff was ultimately indicted by a Suffolk County Grand Jury on a larceny charge arising out of the incident at the Hess station. On January 11, 2007, he was acquitted of those charges. Because his visa expired while he was incarcerated, Plaintiff spent time, not only in a Suffolk County jail, but also at an immigration detention facility in Texas. On March 14, 2007, Plaintiff's attorney served a notice of claim on all Defendants named herein. The notice of claim sets forth, essentially, the same claims set forth in the complaint currently before this court. Thereafter, on July 31, 2007, Plaintiff was granted political asylum and released from federal custody. This action was commenced on February 25, 2008.

III. The Allegations of the Complaint

As noted, the complaint includes allegations against Suffolk County authorities and against the Hess Defendants. Because this motion is addressed only to the claims against the Hess Defendants, the court will detail only those claims. ²

The federal claims against the Hess Defendants are asserted pursuant to 42 U.S.C. § 1983 (“Section 1983”), 42 U.S.C. § 1981 (“Section 1981”), 42 U.S.C. § 1985 (“Section 1985”) and 42 U.S.C. § 1986 (“Section 1986”). The Section 1983 causes of action allege deprivation of Plaintiff's rights pursuant to the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution. The Section 1981 claims also allege violations of these Constitutional Amendments. The Section 1985 claims alleges a conspiracy, and the Section 1986 claim alleges failure to prevent that conspiracy. Plaintiff's complaint also includes several state law claims against all Defendants. Those claims assert assault, battery, intentional infliction of emotional harm, negligent infliction of emotional harm, unlawful imprisonment, malicious prosecution, and abuse of process. Plaintiff seeks compensatory and punitive damages and attorneys' fees.

IV. The Motion

The Hess Defendants move for summary judgment as to all claims. Dismissal of the Section 1983 claims is sought on the ground that the moving defendants are not state actors. The Section 1981 claim is sought to be dismissed on the grounds that: (1) Plaintiff alleges only discrimination based upon religion and national origin, and not race, as required by the statute: (2) there are no facts showing discriminatory...