Comm'n on Human Rights Ex Rel

Comm'n on Human Rights ex rel. Gardner

v. I.J.K. Service, Inc.

OATH Index No. 1921/08 (Oct. 10, 2008)

Complainant, an African-American male, was picked up by a for-hire vehicle on a street hail. The driver refused to drop complainant off at his destination and made several racial comments. Discrimination charges against the driver were sustained. Charges against the livery service company and its owner were dismissed because of a lack of proof that respondent driver's discriminatory actions occurred in the course of his employment for the livery company.

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NEW YORK CITY OFFICE OF

ADMINISTRATIVE TRIALS AND HEARINGS

In the Matter of

COMMISSION ON HUMAN RIGHTS EX REL.

RICKEY GARDNER

Petitioner

- against -

I.J.K. SERVICE, INC. a/k/a SHACK'S PRIVATE CAR

SERVICE, IMRAN LATIF, and TONY SHAX

Respondents

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REPORT AND RECOMMENDATION

KARA J. MILLER, Administrative Law Judge

On December 2, 2005, complainant, Rickey Gardner, filed a verified complaint with the New York City Commission on Human Rights ("Commission") alleging that respondents, I.J.K. Service Inc. a/k/a Shack's Private Car Service, Imran Latif, and Tony Shax, engaged in discrimination by denying him the rights, privileges and advantages of a public accommodation because of his race and color in violation of sections 8-107(4)(a) of the New York City Administrative Code. Respondents did not file an answer in response.

Respondents failed to appear at both the preliminary conference held on April 17, 2008, and the hearing conducted before me on June 11, 2008. Upon respondents' failure to appear at the hearing, proper proof of service of the notice of the hearing was submitted (Pet. Ex. 1). Such evidence established the jurisdictional prerequisite for finding respondents in default. The hearing was continued to June 27, 2008, for the Commission to obtain additional evidence from the Taxi and Limousine Commission. Following the hearing, the record was held open until July 11, 2008, to permit the Commission to submit a post-hearing brief.

After evaluating the record I find that respondent Imran Latif violated section 8-107(4)(a) of the Administrative Code by discriminating against complainant by denying him the rights, privileges and advantages of a public accommodation because of his race and color and recommend that the Commission assess $1,000 in damages and impose a civil fine of $3,000. With respect to respondents I.J.K. Service, Inc. and Tony Shax, I recommend that the charges be dismissed.

ANALYSIS

Complainant, Rickey Gardner, an African-American male, testified that at approximately 11:15 p.m. on April 11, 2005, he and a companion, who is also African-American, were attempting to hail a taxi. While standing on the corner of Hillside Avenue and Queens Boulevard, in QueensCounty, a livery vehicle pulled over to pick them up. Mr. Gardner informed the driver that they would be making two stops. He testified that the driver was hesitant to let them in the car and that there was "something strange about the way he behaved" (Tr. 11). He described the driver as giving him "the type of look" that indicated that he did not want to pick Mr. Gardner up because of his race (Tr. 10).

The driver ultimately agreed to take them, but told Mr. Gardner that he would have to pay $33.00 in advance. Mr. Gardner testified that he thought it was unusual to pay the fare in advance but agreed to do so because he wanted to get home. The driver dropped Mr. Gardner's friend off first at 150th Street and South Road and then proceeded to drive him home. The driver was talking on his cell phone the entire trip and ignored Mr. Gardner when he requested that the driver take the Van Wyck Expressway, rather than Sutphin Boulevard. The ride ended up taking a good deal longer to get to Far Rockaway because the driver refused to take the expressway (Tr. 11-12).

When they approached William Court, Mr. Gardner's street, the driver stopped at the corner of Caffrey Street and told Mr. Gardner that he should get out. The driver said that he would not turn into William Court because it was a dead end and that Mr. Gardner was trying to lure him down there to rob him (Tr. 12). Mr. Gardner replied that William Court was not a dead end and that he had no intention of robbing the driver. He also stressed that he had paid for the fare ahead of time and expected to be dropped off in front of his destination. Refusing to take Mr. Gardner any further, the driver said, "get your black ass out of my car" (Tr. 13). The driver also told Mr. Gardner to walk the rest of the way. Mr. Gardner refused to get out and told the driver to take him to his destination. The driver got angrier and said, "this is why I don't like picking up your kind of people, I thought you were gonna be a nice guy" (Tr. 13). Mr. Gardner testified that the driver then got out of the car and lunged at him (Tr. 13-14).

Mr. Gardner insisted that the driver take him to the police station. When they arrived at the 101st Precinct, the driver jumped out of the car and approached two police officers standing in front of the station. He told them that Mr. Gardner was trying to rob him. Mr. Gardner testified that the officers approached the vehicle with their hands on their weapons. Mr. Gardner showed the officers his identification and explained what had actually occurred. The officers told the driver that Williams Court is not a dead end and instructed him to drive Mr. Gardner to his destination. The driver got very agitated and claimed to be afraid of Mr. Gardner. He asked the officers to escort him as he drove Mr. Gardner home. The officers agreed and they escorted the livery car to Williams Court (Tr. 13-15).

Once they arrived in front of Mr. Gardner's home, he got out of the car and asked the police officers to obtain the driver's name, license number and employer's name so that he could file a complaint. The driver wrote down his information, indicating that his name was Imran Latif, license number 5028738, and that he worked for I.J.K. Service, Inc. in Jamaica, New York. Before turning the information over to Mr. Gardner, the officers requested identification from Mr. Latif to confirm that it was correct. There was something amiss with Mr. Latif's paperwork so the police called for back-up. Two additional police cars appeared on Mr. Gardner's block and the police proceeded to take the driver into custody. The driver began to apologize to Mr. Gardner and pleaded with him not to make a complaint. Mr. Gardner stated that he lives on a quiet block and his neighbors came out of their homes to see what was happening. He testified that he was embarrassed by the police presence and that his neighbors were watching (Pet. Exs. 3, 5; Tr. 15-17).

The following day, still upset about the incident, Mr. Gardner contacted the Taxi and Limousine Commission to file a formal complaint. Respondent Imran Latif failed to appear for the administrative consumer hearing at the Taxi and Limousine Commission on June 20, 2005. Mr. Latif was found guilty of: driving too slowly; acting against the best interests of the public by picking up a street hail; harassing Mr. Gardner by using racially charged language and refusing to drop him off at his destination; and failing to come to the hearing. He was fined $1,150 and his license was suspended. It appears, however, that no charges were brought against the car service company or its owner by the Taxi and Limousine Commission (Pet. Ex. 4; Tr. 17-18).

The Commission charged respondents with violating section 8-107(4)(a) of the New York City Administrative Code, which, in pertinent part, states:

It shall be an unlawful discriminatory practice for any person, being the owner, . . . agent or employee of any place or provider of public accommodation, because of the actual or perceived race, . . . color, . . . directly or indirectly, to refuse, withhold from or deny to such person any of the accommodations, advantages, facilities or privileges thereof . . .

Petitioner alleged that respondents engaged in discrimination by denying Mr. Gardner the rights, privileges and advantages of a public accommodation because of his race and color. Pursuant to section 8-102(9) of the Administrative Code, a provider of a public accommodation includes providers, whether licensed or unlicensed, of goods, services, facilities, accommodations, advantages or privileges of any kind. Respondent Tony Shax, as the owner of the livery service, I.J.K. Service, Inc., as the base, and Imran Latif, as the for-hire vehicle driver, are providers of a public accommodation.

While I found Mr. Gardner to be on the whole very credible, I found his testimony about feeling physically threatened by the driver to be exaggerated. Mr. Gardner initially testified that the driver threatened him and attempted to hurt him by lunging at him; upon further questioning, however, he indicated that the driver did not physically touch him, nor did he try to pull the passenger door open. Instead the driver got out of the car and "fake lunged" at him while Mr. Gardner remained inside (Tr. 13-14, 20).

By refusing to take Mr. Gardner to his destination, Mr. Latif directly refused to provide Mr. Gardner with a public accommodation. There is no doubt that Mr. Latif based his refusal on Mr. Gardner's race, as evidenced by the fact that he accused Mr. Gardner of attempting to rob him while making several racial comments, such as "get your black ass out of my car." Since Mr. Latif is a provider of a public accommodation and refused to provide Mr. Gardner with a service that every member of the public is entitled to, he violated section 8-107(4)(a) of the Administrative Code.

It is less evident, however, that respondents I.J.K. Service, Inc. and Mr. Shax refused to provide Mr. Gardner with a public accommodation. Section 8-107(13)(a) of the Administrative Code imposes strict liability on employers for the discriminatory conduct of an employee or agent in the public accommodations context. The strict liability standard, however, has limited applicability to independent contractors. Section 8-107(13)(c) of the Administrative Code provides that an employer is only "liable for an unlawful discriminatory practice committed by a person employed as an independent contractor, other than an agent of such employer, to carry out work in furtherance of the employer's business enterprise only where such discriminatory conduct was committed in the course of such employment and the employer had actual knowledge of and acquiesced in such conduct."

The existence of an employer-employee relationship is a factual determination made upon consideration of factors, which may include the right to control, the method of payment, who furnishes the equipment, the right to discharge, and the relative nature of the work. See Commissioners of the State Insurance Fund v. Lindenhurst Green & White Corp., 101 A.D.2d 730, 731, 475 N.Y.S.2d 42, 43-44 (1stDep't 1984). An employer-employee relationship is not established by the "mere retention of general supervisory powers over an independent contractor." Goodwin v. Comcast Corp., 42 A.D.3d 322, 323, 840 N.Y.S.2d 781, 782 (1stDep't 2007). Therefore, depending on the specific facts associated with the case, a for-hire driver may either be considered an employee or an independent contractor. See, In re Langford, 282 A.D.2d 804, 722 N.Y.S.2d 429 (3d Dep't 2001) (for-hire drivers were found to be employees rather than independent contractors because the cab company exercised sufficient direction and control over the drivers' work schedules, passenger assignments and fare collection); Abouzeid v. Grgas, 295 A.D.2d 376, 743 N.Y.S.2d 165 (2d Dep't 2002) (a limousine driver was found to be an independent contractor and the limousine service provider was not held liable for injuries caused during an accident because it exercised only incidental control over the driver); c.f. Dailey v. Ross, 58 A.D.2d 909, 396 N.Y.S.2d 517 (3d Dep't 1977) (taxi drivers were found to be independent contractors rather than employees of the fleet owner because the cabs were issued to drivers each morning on a first-come, first-served basis, and the drivers retained 100% of all fares); Irrutia v. Terrero, 227 A.D.2d 380, 642 N.Y.S.2d 328 (2d Dep't 1996) (drivers were found to be independent contractors because they owned and maintained their own vehicles, received no salary, retained their own fares, obtained their own insurance and were at liberty to maintain their own schedules).

In this case, however, it is unnecessary to do an in-depth analysis of the facts to determine whether Mr. Latif was an employee or an independent contractor. The respondents did not file an answer to the petition nor did they appear at the hearing. Pursuant to section 8-111(c) of the Administrative Code and section 1-14(b) of the Commission Rules, "[a]ny allegation in the complaint not specifically denied or explained shall be deemed admitted . . ." The verified complaint alleges that I.J.K Service, Inc. is an employer, Mr. Shax is the proprietor of I.J.K. Service, Inc. and Mr. Latif is employed by I.J.K. Service, Inc. (Pet. Ex. 2). In light of Shax and I.J.K's failure to deny or explain the allegation that Mr. Latif is an employee, the allegation is deemed admitted.

Under the Administrative Code, strict liability attaches to an employer for the discriminatory practices of an employee, but it is first necessary to determine whether the unlawful discriminatory acts occurred in the course of employment. It is unclear whether Mr. Latif was actually working for I.J.K. Service, Inc. or for himself at the time of the incident. As stated earlier, the Commission alleged in the complaint that Mr. Latif was an employee of I.J.K. Service, Inc.; it did not, however, allege that Mr. Latif was working for I.J.K. Service, Inc. at the time that he picked up Mr. Gardner. Thus, the Commission has the burden of establishing that Mr. Latif was working for I.J.K. Service, Inc. at the time that he picked up Mr. Gardner.

Despite Mr. Gardner's and the Commission's referral to Mr. Latif as a hack driver or taxi driver, he is not. The Taxi and Limousine Commission makes a distinction between yellow medallion taxicabs and for-hire vehicles. A for-hire vehicle is a livery vehicle, which may only operate out of a base. See Chapters 2 (Taxicab Drivers Rules) and 6 (For-Hire Vehicles) of Title 35 of the Rules of the City of New York (RCNY). While a taxicab may legally stop to pick up passengers on a street hail, a for-hire vehicle may only respond to a radio call from its affiliated base. A passenger interested in legitimately hiring a livery or for-hire vehicle must contact the base or car service office and it will in turn call the driver to send him to the passenger's location. 35 RCNY §§ 6-06(a), 6-06(f), 6-08(e)(1). A for-hire vehicle driver may not pick up a passenger on a street hail. 35 RCNY § 6-16(f). Even though it is a violation of Taxi and Commission Limousine's rules for a for-hire vehicle driver to pick up a street hail, it is common knowledge that some drivers do so anyway, in order to make extra money to supplement what they are being paid by the base. It can not be assumed that a driver would inform his base if he is working for himself picking up street hails, because it could result in the base taking a share of his earnings. It is even more likely that the base would not condone the driver's practice of picking up street hails because it is illegal and a driver who is busy transporting street hail passengers is less available to pick up legitimate car service customers. Moreover, the driver would be less subject to supervision and monitoring by the base.

The Commission argued that I.J.K. Service, Inc. exhibited a certain level of control over Mr. Latif because it owned the vehicle he was driving at the time of the incident. Simply using the vehicle owned by the base, however, does not automatically mean that Mr. Latif was actually working for the base at the time he picked up Mr. Gardner. He could have solicited Mr. Gardner on his break or after he went off-duty, but before he returned the vehicle to the base. Either way, given the prohibition against picking up street hails and the fact that the base would not have necessarily been aware of the street hail, Mr. Latif more likely than not picked up Mr. Gardner and his companion to earn money for himself, not to share it with I.J.K. Service, Inc. If Mr. Latif was working for himself to earn extra money when he picked up Mr. Gardner, then the discrimination did not occur within the course of his employment with I.J.K. Service, Inc.

The Commission, in its post-trial brief, further argued that respondent I.J.K Service, Inc. knew or should have known that respondent Latif was likely to commit the illegal act of soliciting a passenger because he had done so before. In making this argument, the Commission referred to Mr. Latif's violation history with the Taxi and Limousine Commission, which it failed to submit into evidence. The Commission did not allege that I.J.K. Service, Inc. was aware of Mr. Latif's prior bad acts in the petition, nor did it establish such knowledge during the hearing. In all likelihood, respondents I.J.K. Service, Inc. and Shax were unaware of respondent Latif's driving history. Indeed, the Taxi and Limousine Commission did not take any action against the base or its owner, which further suggests that Mr. Latif acted outside the scope of his employment (Pet. Ex. 4).

I find that the Commission failed to establish that Mr. Latif was working for the base when he picked up Mr. Gardner on a street hail. Since in all likelihood, Mr. Latif discriminated against Mr. Gardner during the commission of an illegal act while working for himself, rather than for the base, respondents I.J.K. Service, Inc. and Mr. Shax should not be held liable. SeeDonohue v. Young, 298 A.D.2d 354, 751 N.Y.S.2d 253 (2d Dep't 2002) (the City was not liable for the negligence of a firefighter who, while off-duty and attending to personal business, stopped on an expressway to attend to a car fire because the firefighter acted voluntarily, rather than under the direction or control of the City); see also, Ehlenfield v. State of New York, 62 A.D.2d 1151, 404 N.Y.S.2d 175 (4th Dep't 1978) (the State was not liable for injuries to a bystander resulting from an accident caused by a state trooper who was driving to his next shift, with a refrigerator in his truck that he had planned on installing in a nearby station because there was no evidence that he had permission to install the refrigerator or that his employer was aware of this intention to do so; the fact that the employee was always on call was insufficient to cast liability on his employer); Haybeck v. Prodigy Services Co., 944 F.Supp. 326 (S.D.N.Y. 1996) (online sex chat service not liable for employees conduct where employee, a technical advisor with HIV virus, transmitted the virus to a customer through sex, because even though the employee initially met the customer online as part of his employment and the company may have known that he was sleeping with customers, his sexual relationship with the customer and his failure to inform her as to his HIV status was a 'departure from normal methods of performance' and therefore, outside the scope of employment).