United States District Court, S.D. New York
June 21, 2004.
MOHAMED ALI ABDRABO, Plaintiff,
STATE OF N.Y.-WORKER COMPENSATION BD., FOWAD TRADING CO., INC., Managing by Mr. Fouad Mohamed Al Eshmawi, and AMERICAN MOTORIST INSURANCE COMPANY, C/O the Kemper National Insurance Company, Defendants.
The opinion of the court was delivered by: DENISE COTE, District Judge
OPINION & ORDER
Defendants American Motorist Insurance, Co., ("AMIC") and FOWAD
Trading Co, Inc. ("FOWAD") have filed motions for judgment on the
pleadings pursuant to Rule 12(c), Fed.R.Civ.P. For the reasons
set forth below, AMIC's motion is granted and FOWAD's motion is
granted in part. Background
On September 30, 2003, pro se plaintiff Mohamed Ali Abdrabo
("Abdrabo") filed a complaint against the New York State Workers'
Compensation Board ("WCB"), FOWAD, and AMIC. On December 12,
defendant WCB filed a motion to dismiss the claims filed against
it on the grounds that the WCB was immune from suit in federal
court under the Eleventh Amendment and that plaintiff failed to
state a claim against it. At an initial conference on January 22,
2004, WCB's motion to dismiss was granted. On February 24, both
AMIC and FOWAD filed motions for judgment on the
Abdrabo's complaint states that he was employed as a security
guard by FOWAD at its store located at 2554 Broadway, New York,
New York, during the period January 1, 1992 through December 21,
1998. In April 1994, Abdrabo developed a left inguinal scrotal
hernia while lifting a heavy box at work. Plaintiff immediately
notified FOWAD of his injury. After the hernia became enlarged in
1995, plaintiff went to Roosevelt Hospital and his injury was
diagnosed. Plaintiff continued to work at FOWAD until December
21, 1998, at which time he went to Roosevelt Hospital and was
referred to a specialist for surgery.
After FOWAD refused to execute the necessary documentation for
payment of plaintiff's surgery, plaintiff consulted an attorney
and filed a worker's compensation claim with the WCB in or around January 1999. In this claim, AMIC was identified as the
workers' compensation carrier for FOWAD. Plaintiff was
hospitalized due to a strangulation of his hernia from July 29 to
August 3, 1999.
In March 2000, a WCB judge found that plaintiff's worker's
compensation claim was untimely filed. Plaintiff again consulted
with his lawyer and decided to appeal WCB's decision. Abdrabo's
attorney, however, filed an untimely appeal, 75 days after the
WCB decision, rather than within the thirty day appeal period.
The WCB's three member Appeals Board denied the appeal as
Plaintiff made several efforts to re-open his case with the
WCB, contending that his injury was a repetitive trauma which
developed over the course of his employment and thus was not
time-barred. On April 24, 2002, the WCB issued an Amended
Memorandum of Decision which upheld the earlier denial of
plaintiff's worker's compensation claim as untimely and provided
a detailed explanation of the basis for the ruling.
Abdrabo has also brought at least six actions, each for no more
than $3,000.00, for non-payment of wages and benefits in New York
County Civil Court Small Claims Part.*fn2 The first claim,
Index No. 1442/2001, was for FOWAD's alleged deduction of
Abdrabo's salary when he took lunch breaks. This action resulted
in a stipulation of settlement between the parties on April 17, 2001, wherein FOWAD paid Abdrabo $1,500.00.
The second claim, Index No. 4301/2001, was for instances in
which the defendant allegedly deducted money from Abdrabo's pay
for the purposes of paying Abdrabo's income tax. This action
resulted in a default judgment against FOWAD for $3,712.50 issued
on August 29, 2001.
The third claim, Index No. 5863/2001,*fn3 was for pay that
FOWAD owed Abdrabo for days in which Abdrabo was told not to come
into work because of inclement weather. This action resulted in a
default judgment against FOWAD for $3,825.00 issued on February
The resolution of the remaining three claims is not clear from
the parties' submissions. The fourth claim, Index No. 1249/2002,
sought the remaining damages of the first claim on the ground
that Abdrabo had been tricked into settling the first claim for
less than the full amount of the claim. The fifth claim, Index
No. 1692/2002, was for failure to pay Abdrabo a promised bonus.
The sixth claim, Index No. 2533/2002, was for money Mr. Fouad
Mohamed Al Eshmawi ("Al Eshmawi"), the alleged owner and manager
of FOWAD, took out of Abdrabo's salary in order to make a
contribution to Al Eshmawi's mosque.
FOWAD eventually moved to vacate an unspecified number of the
default judgments entered against it in New York County Court. In
a September 17, 2002 Decision/Order ("Decision/Order") relating to Index No. 5863/2001, the New York County Court
apparently consolidated several of Abdrabo's other claims and
vacated certain of the default judgments. The parties'
submissions do not describe precisely which of Abdrabo's claims
the New York County Court consolidated and which default
judgments were vacated. The only document submitted to this Court
relating to claims adjudicated by the Decision/Order was an
incomplete copy of the one-page, handwritten decision.*fn4
The Decision/Order, however, dismissed with prejudice Abdrabo's
claim(s) stating that his claims for unpaid benefits or wages
arising out his employment with FOWAD were "settled or are
barred." There is no evidence of any appeal from that ruling.
Allegations against Fowad and AMIC
Abdrabo's complaint lists five causes of action against the
three named defendants. The complaint centers on the alleged
wrongdoing on the part of the WCB and Abdrabo's lawyer in the
proceedings before the WCB. With respect to AMIC, Abdrabo claims
that it conspired with the WCB to deny him compensation. Abdrabo
also seems to allege that AMIC was obligated to provide him with
temporary compensatory benefits after he filed his claim with the
WCB regardless of whether the WCB ultimately awarded him damages.
Lastly, Abdrabo claims that AMIC is jointly liable for the
damages he seeks against all parties. With respect to FOWAD, Abdrabo's claims can be characterized as
a failure to pay wages and benefits. More specifically, Abdrabo
contends that FOWAD, through the actions of its owner and
manager, Al Eshmawi, violated the Fair Labor Standards Act
("FLSA")*fn5 by forcing him to work seven days a week, ten
hours a day, with no allotment of sick or vacation days, and that
FOWAD failed to pay Abdrabo his agreed upon salary, and failed to
pay him the minimum wage and overtime. Abdrabo also contends that
FOWAD, through the actions of Al Eshmawi, promised to pay for his
hernia operation and actively encouraged him to lie to the
hospital about his personal information and employment status. In
addition, Abdrabo's complaint could be read as having alleged a
Title VII claim, 42 U.S.C. § 2000(e), against FOWAD and AMIC as
there are non-specific allegations that he was discriminated
against because he practices the Muslim faith.
In their motions for judgment on the pleadings, both AMIC and
FOWAD argue that to the extent that Abdrabo seeks to hold them
liable for violations of his civil rights arising out of the WCB
proceedings, they are immune to such a claim because they are not
state entities. AMIC further argues that the Rooker-Feldman
doctrine denies the Court subject matter jurisdiction to address
Abdrabo's attempt to hold AMIC liable for the alleged errors in
the WCB proceedings. For its part, FOWAD argues that it is not liable for Abdrabo's claims for back wages and benefits under the
principles of res judicata FOWAD had reached a settlement with
Abdrabo which it paid and a state court has ruled on Abdrabo's
claims for back wages and benefits.
The standard for evaluating a motion for judgment on the
pleadings under Rule 12(c), Fed.R. Civ. P., is the same as that
under Rule 12(b)(6), Fed.R.Civ.P. Patel v. Contemporary
Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001).
When considering a motion to dismiss, a court must take all facts
alleged in the complaint as true and draw all reasonable
inferences in favor of the plaintiff. Securities Investor
Protection Corp. v. BDO Seidman, LLP, 222 F.3d 63, 68 (2d Cir.
2000); Jaghory v. New York State Department of Education,
131 F.3d 326, 329 (2d Cir. 1997). "Dismissal is inappropriate unless
it appears beyond doubt that the plaintiff can prove no set of
facts which would entitle him to relief." Raila v. United
States, 355 F.3d 118, 119 (2d Cir. 2004); Securities Investor
Protection Corp., LLP, 222 F.3d at 68. Where, as here, a
plaintiff is proceeding pro se, the court has an obligation to
"construe [the] pleadings broadly, and interpret them to raise
the strongest arguments they suggest." Cruz v. Gomez,
202 F.3d 593, 597 (2d Cir. 2000) (citation omitted); see also Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Abdrabo's claims are governed by the pleading standard set forth in Rule 8(a), Fed.R.Civ.P. Under Rule 8(a), a
complaint adequately states a claim when it contains "a short and
plain statement of the claim showing that the pleader is entitled
to relief." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512
(2002) (citing Rule 8(a)(2), Fed.R. Civ. P). Thus, under
Rule 8(a)'s liberal pleading standard, a complaint is sufficient if
it gives "fair notice of what the plaintiff's claim is and the
grounds upon which it rests." Id. (citation omitted). See
also Phelps v. Kapnolas, 308 F.3d 180, 186 (2d Cir. 2002).
"Consideration is limited to the facts alleged in the complaint
and any documents attached to the complaint or incorporated by
reference." Rombach v. Chang, 355 F.3d 164, 169 (2d Cir. 2004).
To the extent that plaintiff claims that the proceedings of the
WCB violated his civil rights under 42 U.S.C. § 1983, there is no
basis for such a claim against defendants FOWAD or AMIC. In order
to state a claim under Section 1983, a plaintiff must allege that
he was injured by "either a state actor or a private party acting
under color of state law," Ciambriello v. County of Nassau,
292 F.3d 307, 323 (2d Cir. 2002), and that such conduct deprived him
of a right, privilege, or immunity secured by the Constitution or
laws of the United States, Dwares v. City of New York,
985 F.2d 94, 98 (2d Cir. 1993). "To state a claim against a private entity
on a section 1983 conspiracy theory, the complaint must allege
facts demonstrating that the private entity acted in concert with the state actor to commit an
unconstitutional act." Ciambriello, 292 F.3d at 324 (citation
A private entity's conduct can fairly be attributable to the
state "only if there is such a close nexus between the State and
the challenged action that seemingly private behavior may be
fairly treated as that of the State itself." Tancredi v.
Metropolitan Life Ins. Co., 316 F.3d 308, 312 (2d Cir. 2003)
(citation omitted). A close nexus may be found
[W]here the State exercises `coercive power' over, is
`entwined in [the] management or control' of, or
provides `significant encouragement, either overt or
covert" to, a private actor, or where the private
actor "operates as a willful participant in joint
activity with the State or its agents,' is
`controlled by an agency of the State,' has been
delegated a `public function' by the state, or is
`entwined with governmental policies.'
Tancredi, 316 F.3d at 313 (citation omitted).
Abdrabo has not adequately alleged that AMIC or FOWAD acted
under the color of state law or that there was a close nexus
between AMIC or FOWAD and the WCB.*fn6 In addition, to the
extent that Abdrabo's complaint can be construed as having
alleged that AMIC was compelled to pay him workers compensation
benefits before the WCB made a decision about his claim, he has
identified no state or federal law or pointed to any AMIC
contractual obligation that require such payments. Title VII
Abdrabo's complaint may be read to claim that AMIC and FOWAD
violated Title VII by discriminating against him because of his
religious beliefs. Title VII provides, in relevant part, that
[i]t shall be unlawful for an employer . . . to
discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of
employment, because of the individual's race, color,
religion, sex, or national origin."
42 U.S.C. § 2000e-2(a)(1) (emphasis supplied). Title VII requires
a claimant to file a discrimination charge with the Equal
Employment Opportunity Commission (EEOC) within 180 days of the
alleged unlawful employment action or, if the claimant has
already filed the charge with a state or local equal opportunity
employment agency, within 300 days of the alleged act of
discrimination. See 42 U.S.C. § 2000e-5(e)(1). This requirement
functions as a "statute of limitations in that discriminatory
incidents not timely charged before the EEOC will be time-barred
upon the plaintiff's suit in district court." Quinn v. Green
Tree Credit Corp., 159 F.3d 759
, 765 (2d Cir. 1998) (citation
omitted). Presentation of a Title VII claim to the EEOC "is not a
jurisdictional prerequisite, but only a precondition to bringing
to a Title VII action that can be waived by the parties or the
court." Francis v. City of New York, 235 F.3d 763
, 768 (2d Cir.
2000) (citation omitted).
Abdrabo's Title VII claim against AMIC must fail because AMIC
did not "employ" Abdrabo. The apparent Title VII claim against
FOWAD, however, cannot be dismissed at this stage. Promissory Estoppel
Abdrabo's claims that FOWAD, through the words and deeds of Al
Eshmawi, promised and then failed to pay him for certain
benefits, particularly the medical care for his hernia. Under New
York law, which governs this claim, a plaintiff must prove three
elements to succeed on a claim of promissory estoppel: "(1) a
clear and unambiguous promise, (2) reasonable and foreseeable
reliance by the promisee, and (3) unconscionable injury to the
relying party as a result of the reliance." Readco, Inc. v.
Marine Midland Bank, 81 F.3d 295, 301 (2d Cir. 1996). See also
Devlin v. Empire Blue Cross and Blue Shield, 274 F.3d 76, 84 n.
5, 85 (2d Cir. 2001). Abdrabo has adequately alleged the elements
of promissory estoppel regarding FOWAD's promise and subsequent
failure to pay for Abdrabo's hernia operation and related
Fair Labor Standards Act
Abdrabo has alleged that FOWAD failed to pay him a minimum wage
and overtime as required by the FLSA. In addition, Abdrabo claims
that FOWAD failed to maintain and preserve payroll records as
required by regulations promulgated by the Secretary of Labor
under the FLSA. See 29 C.F.R. § 516.2. The minimum wage
provision of the FLSA states, in pertinent part:
Every employer shall pay to each of his employees who in any workweek is engaged in commerce or in the
production of goods for commerce, or is employed in
an enterprise engaged in commerce or in the
production of good for commerce, wages at the
following rates: (1) except as otherwise provided in
this section, not less than $4.25 an hour during the
period ending on September 30, 1996, not less than
$4.75 an hour during the year beginning on October 1,
1996, and not less than $5.15 an hour beginning
September 1, 1997.
29 U.S.C. § 206(a)(1). The overtime provision of FLSA provides,
in pertinent part:
no employer shall employ any of his employees . . .
for a workweek longer than forty hours unless such
employee receives compensation for his employment in
excess of the hours above specified at a rate not
less than one and one-half times the regular rate at
which he is employed.
29 U.S.C. § 207(a)(1); Grochowski v. Phoenix Constr.,
318 F.3d 80
, 87 (2d Cir. 2003).
Abdrabo has stated a claim under the FLSA. While FOWAD argues
that Abdrabo's FLSA claims are prohibited under the principles of
res judicata, it does not appear from the parties' submissions
that Abdrabo's state law claims sought relief based on the same
alleged misdeeds as he asserts here failure to pay a minimum
wage and overtime, and to maintain payroll records. Furthermore,
in its conclusory assertion of res judicata, FOWAD has failed to
provide adequate documents and information needed to more fully
address its contention that res judicata bars Abdrabo's FLSA
The motion for judgment on the pleadings by the American
Motorist Insurance, Co. is granted. AMIC shall be dismissed from
this action. The motion for judgment on the pleadings by FOWAD
Trading Co, Inc. is granted in part and denied in part.
Plaintiff's Title VII, FLSA, and promissory estoppel claims
against FOWAD shall proceed.