Sanchez v. Hersha Hosp. Tr.

1

2024 NY Slip Op 30141(U)

STEVEN ANTHONY SANCHEZ, Plaintiff, v. HERSHA HOSPITALITY TRUST, HERSHA HOSPITALITY MANAGEMENT, L.P., DEMETRIUS HODGE Defendant.

Index No. 156523/2021, Motion Seq. No. 001

Supreme Court, New York County

January 11, 2024

Unpublished Opinion

PART 46M

MOTION DATE 01/24/2023

DECISION + ORDER ON MOTION

HON RICHARD LATIN, JUDGE

The following e-filed documents, listed by NYSCEF document number (Motion 001) 9,10, 11,12,13, 14, 15, 16, 17, 18, 19 20,21,22,23, 24, 25, 26 were read on this motion to/for DISMISS.

Upon the foregoing documents, it is ordered that defendants' motion to dismiss plaintiff s complaint pursuant to CPLR 3211 is determined as follows:

Factual Background

Plaintiff Steven Anthony Sanchez has a conviction history (NY St Cts Elec Filing [NYSCEF] Doc No. 2, Complaint, ¶ 13). In December 2021, Plaintiff applied for a bell person position at the Moxy NYC Downtown Hotel ("Moxy") (id., ¶ 14). Plaintiff was interviewed and hired. After plaintiff was hired, he was required to consent to a background check (id., ¶ 16). A week into this employment, plaintiff arrived at work and defendant Hodge, the general manager, asked plaintiff to speak with him, however, defendant Demetrius Hodge (Hodge) was preoccupied and told plaintiff that they would speak the following day (id., ¶ 18). Plaintiff arrived to work the next day and discovered that another bell person had been assigned to his duties. Plaintiff alleges that defendant Hodge told him, "Sorry, we found out that you have a criminal background, so we're going to let you go" (id., ¶ 19). Around the same time, plaintiff received from defendants an adverse action notice, which stated, "we find it necessary to rescind our previous offer of employment" and that "this decision was based in whole or part, on the information provided to us in a consumer report or investigative consumer report" (id., ¶ 20). Plaintiff alleges that defendants did not provide him with a more detailed explanation of why his conviction disqualified him from serving as a bell person at the Moxy (id., ¶ 21). Plaintiff further alleges that defendants did not provide him with a copy of the Article 23-A^[1], detailing the circumstances under which an employer may reject an applicant on the basis of a conviction history (id., ¶ 22).

On June 29, 2022, plaintiff commenced this employment discrimination action. Plaintiff s first cause of action alleges violation under the New York City Human Rights Law, New York City Administrative Code § 8-107 (NYCHRL). Plaintiffs second cause of action alleges violation under the Fair Credit Reporting Act, General Business Law § 380-g (d) (FCRA). Additionally, plaintiff alleges a class action pursuant to CPLR 901 and 902 under the NYCHRL and FCRA classes, which include individuals with criminal records, who applied for employment at any New York City hotel owned or operated by the defendants and were denied employment or terminated based on their background reports. Defendants now move to dismiss plaintiffs complaint pursuant to CPLR 3211 (a) (7). Plaintiff opposed. Defendants submitted a reply.

The Parties' Contentions

Defendants assert that the complaint fails to state a cause of action under the NYCHRL for the following reasons: (i) defendants obtained a criminal background check after plaintiffs conditional offer of employment in compliance with the requirements of NYCHRL (NYSCEF Doc No. 10, Memorandum of Michael F. Fleming, Esq. (memo), 10); (ii) defendants were not required to conduct an Article 23-A analysis (Fair Chance analysis) because defendants had a legitimate, nondiscriminatory reason for terminating plaintiff, i.e. because he misrepresented his criminal conviction on his background application (id., 13); (iii) plaintiffs termination was proper because his criminal history falls within the exception to the NYCHRL (id., 14); and (iv) defendant was not required to give reasonable notice because plaintiff was terminated for his misrepresentation, and even if they were required to do so, plaintiff had four days to respond to the pre-adverse notice and had a personal interview with defendant Hodge before his termination to raise any issue (id., at 16). Plaintiff only alleged a conclusory allegation of harm suffered which lacks a causal connection to the NYCHRL violations (id., at 17). Second defendants argue that plaintiff lacks standing t]o assert a FCRA claim because plaintiff only alleged that he was not given a copy of Article 23-A when he received his consumer report and did not articulate any harm from the procedural violation (id., 17-18). Third, defendants allege that because there is no certifiable class action pursuant to CPLR 901 (a), therefore, plaintiff s class allegations should be stricken (id., 18). Specifically, plaintiff has made conclusory allegations, and the documentary evidence shows that there is neither numerosity, commonality or typicality as a matter of law (id.). Lastly, defendants argue that the action should be dismissed against defendants Hodge and Hersha Hospitality Trust (HHT) because the NYCHRL only applies to an employer (id., 20). Defendants assert that defendant Hersha Hospitality Management, L.P. (HHMLP) was the only employer, and Hodge was only a corporate employee and HHT is not involved in the hiring and firing of employees of HHMLP (id, 21).

With their moving papers, defendants submit a declaration of defendant Hodge. According to defendant Hodge, on December 31, 2021, plaintiff applied for a job as a bellhop with the Moxy (NYSCEF Doc No. 12, Declaration of Demetrious Hodge (Hodge declaration), at 5). He received a conditional offer of employment on January 3, 2022, to begin working on January 4, 2022 (id., ¶ 4). There is no dispute that plaintiff received a conditional offer before the background check (NYSCEF Doc No. 22, Memorandum in Opposition of C.K. Lee, Esq. (opp memo), at 1). After accepting the offer, on the same day at 12:01 pm, plaintiff completed a request for standard background information, which included a question regarding plaintiffs criminal history (NYSCEF Doc No. 15). Plaintiff answered "no" when asked as a part of his application whether he had any past criminal convictions (Hodge declaration, ¶¶ 5-6). Plaintiff worked at the Moxy from January 4, 2022, to January 14, 2022 (id., ¶ 4). He was terminated on January 14, 2022 (id., ¶ 11). On January 10, 2022, defendants received a consumer report indicating plaintiff has a criminal history; he was paroled from prison in 2015 after serving 3 years on a conviction for first-degree robbery, and he was paroled from prison in 2017 after serving 3 years on a conviction for second-degree criminal possession of a weapon (NYSCEF Doc No. 16, at 7-8, Pre-Adverse Action Letter dated January 10, 2022). Defendants provided plaintiff with a pre-adverse action letter dated January 10, 2022, and the consumer report (Hodge declaration, ¶ 8). The Hodge declaration claims that on January 12, 2022, defendants made the decision to terminate plaintiff based on his false statement regarding his criminal history and that plaintiff was provided an adverse action notice dated January 12, 2022, informing him of his termination (id., ¶ 9).

In opposition, plaintiff argues that defendants' motion should be denied. First, his complaint sufficiently pleads a claim for violation of the NYCHRL and the FCRA as defendants failed to comply with Article 23-A by not providing plaintiff with a written copy of the analysis explaining their reasons for terminating plaintiff, and a reasonable time to explain himself prior to taking an adverse action (opp memo, at 3). Defendants admit that Hodge met with plaintiff after the date of the adverse action letter (id.). Second, plaintiff only must plead a prima facie case of discrimination at the motion to dismiss stage, and defendants' nondiscriminatory rationale for an adverse employment action may be considered only on a motion for summary judgment, and not on a motion to dismiss (id., at 8). Third, plaintiff has standing to bring claims under the NYCHRL and the FCRA (id., at 11). Fourth, it is premature to dismiss plaintiff s class allegations on a motion to dismiss, and defendants' affidavits are not documentary evidence within the meaning of CPLR 3211 (id., at 15). Lastly, plaintiff has adequately alleged that HHT and Hodge are properly named defendants as defendant HHT signed its name on both the adverse action and pre-adverse action letters sent to plaintiff, and defendant Hodge was involved in the process leading to plaintiff s termination (id., at 16-17).

In reply, defendants assert that their motion should be granted because the documentary evidence negates the allegations against them (NYSCEF Doc No. 25, Reply Memorandum of Michael F. Fleming, Esq. (reply memo), at 3). They further argue that because plaintiff was terminated for lying on his background authorization and not because of his criminal record defendants were not required to do an Article 23-A analysis (id.). Defendants contend that plaintiff as a current employee was only entitled to reasonable notice (id., at 4). The notice requirements pursuant to the NYSHRL and NYCHRL do not apply as he was terminated because of his misrepresentation (id.). Plaintiff only alleged a bare allegation that he has a criminal history and was not hired which is insufficient to plead a discrimination claim under NYCHRL (id., at 6). As to the class allegations, based on defendants' documentary evidence, plaintiff is not a member of the class as he was terminated for his misrepresentation and not because of his criminal background (id., at 9). Lastly, pursuant to Administrative Code § 8-107 (6), an individual employee may be held liable for aiding and abetting...