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United States District Court, S.D. New York

June 21, 2004.

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


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 pleadings.*fn1

  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 untimely.

  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 2, 2002.

  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).

  Section 1983

  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 omitted).

  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 care.*fn7

  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 claims.*fn8 Conclusion

  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.


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