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Flores v. Graphtex

December 23, 2008


The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge



Defendants move (Dkt. No. 83) to dismiss the amended complaint for failure to state a claim. Fed. R. Civ. P. 12(c). As set forth below, the Court finds that the allegations in plaintiff's pro se submissions make out plausible claims for discrimination and retaliation sufficient to withstand this dismissal motion. The motion is granted with respect to the individual defendants (John Thorp, Dave Lavala, Candido Garcia, and Anthony Cutarri), and otherwise denied.*fn1


In his initial complaint (Dkt. No. 1), plaintiff claims that on December 16, 1994, defendant John Thorp (apparently from defendant Graphtex) sent plaintiff to work at defendant Human Technologies Corporation ("HTC"),*fn2 telling him it "looks like there is work"; that on December 19, 1994, plaintiff arrived at HTC at 7:30 a.m. but no one showed up to pick him up for work; that plaintiff called "the big boss," defendant Dave Lavala, and told him that he had been fired from Graphtex and that he was "very sick" from "nerves and other health problems"; that Lavala stated that plaintiff should go to his doctor to find out whether he was eligible for workers compensation, and he could come back to work when his problems were resolved; that Lavala said plaintiff quit his job; and that plaintiff did not quit his job but was fired.

On October 9, 1996, Hon. Howard G. Munson, then Senior District Court Judge, dismissed the action (Dkt. No. 8). On March 31, 1999 Judge Munson granted plaintiff's motion to reopen the action and directed plaintiff to file a complaint within 60 days (Dkt. No. 13).*fn3

On May 19, 1999, plaintiff filed four separate complaints (Dkt. No. 15), each naming a single defendant. Each complaint, based on 42 U.S.C. § 2000e, et seq. ("Title VII"), alleged discrimination due to race, color, and national origin, stemming from the same incident alleged in the initial complaint. As against defendants Thorp and Tony Putachi, plaintiff also claimed retaliation. The complaint against Thorp alleged that plaintiff's job was terminated; that plaintiff was told there was no job for him when there was work available; that at the first worksite (apparently Graphtex), Thorp told plaintiff to go to a second worksite (apparently HTC); and that at the second worksite plaintiff was told there had been work at the first worksite. In the complaint against Lavala, plaintiff claimed that he was on time for work; that no one picked him up for work (apparently at HTC); that plaintiff called Lavala, who told him to go back to the other factory (apparently Graphtex); and that Lavala said plaintiff quit his job, which was untrue. The other two complaints, against Putachi, who was not named as a defendant in the superseding complaint, and defendant Candido Garcia, alleged that both men worked at defendant Graphtex and were out of work the day plaintiff was laid off, apparently as part of a "plan" against plaintiff.

By order dated September 29, 1999 (Dkt. No. 16), Judge Munson dismissed the May 19, 1999 complaints. The order included instructions to file a single complaint with specific allegations against each named defendant.

Thereafter, on October 26, 1999, plaintiff filed the amended complaint presently before this Court (Dkt. No. 19). Plaintiff states that he worked at Graphtex; that on the morning of December 16, 1994, he was working with Thorp; that Thorp "didn't want [plaintiff] to work there" any more and wanted to give plaintiff "a layoff to work somewhere else"; that Garcia and Anthony Cutarri, plaintiff's supervisor, "didn't show up for work that day"; that plaintiff went to HTC "to see what kind of job they had for [him]"; that plaintiff explained to Lavala what happened at Graphtex; and that no one showed up to pick plaintiff up for work. The relief requested by plaintiff is: "I want the company to pay me [the] back payment that they owe me and pain and suffering for losing my job."

Attached to defendants' answer to the amended complaint (Dkt. No. 31) is the administrative charge plaintiff filed with the State Division of Human Rights ("SDHR") with respect to the incident underlying the present action.*fn4 In the SDHR charge, plaintiff states that he is Hispanic; that he has an arrest record; that on October 4, 1994, he arrived at a settlement agreement with HTC in a previous discrimination action; and that as a result of the agreement, he was returned to work. (Northern District records establish that the previous action, Flores v. Human Technology, 5:93-CV-1015, was commenced on July 30, 1993 and settled on October 4, 1994.) Plaintiff states that on October 12, 1994,*fn5 his supervisor, John Thorp, told him he was being laid off due to lack of work. He said he was the only one to be terminated, and he believes he was terminated due to his national origin and in retaliation for his prior discrimination claim.

On December 9, 2005 (Dkt. No. 44) Judge Munson dismissed the action for failure to prosecute. On February 1, 2006, plaintiff moved (Dkt. No. 47) to reopen the case; Judge Munson granted the motion on September 30, 2006. On February 21, 2008, the case was reassigned to Chief District Court Judge Norman A. Mordue. Thereafter, defendants made the instant motion, returnable on September 3, 2008.


Applicable Law - Motion to Dismiss Pro Se Complaint

Defendant moves under Fed. R. Civ. P. 12(c) to dismiss the complaint for failure to state a claim upon which relief may be granted.*fn6 To survive a dismissal motion, "a complaint must plead 'enough facts to state a claim to relief that is plausible on its face.'" Ruotolo v. City of New York, 514 F.3d 184, 188 (2d Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, __ U.S. __, 127 S.Ct. 1955, 1974 (2007)). The court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See ATSI Communications, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). A complaint should be "especially liberally construed when it is ...

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