The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge
Plaintiff Hicham Azkour ("Azkour"), proceeding pro se and in forma pauperis, brings this action under 42 U.S.C. § 1981, Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e, et seq., New York Executive Law ("NYEL ") § 296, et seq.,*fn1 the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111, et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621, et seq., alleging that defendants Jean-Yves Haouzi ("Haouzi"), Franck Maucort ("Maucort"), Jessica Comperiati ("Comperiati"), and Little Rest Twelve, Inc. ("LRT"), discriminated and retaliated against him, "on account of his race (Arab)," by interfering with his rights to: (1) enforce an employment contract; (2) sue; (3) be a party to a proceeding; (4) give evidence in a proceeding; and (5) "enjoy the full and equal benefit of all laws and proceedings for the security of his person and property as is enjoyed by white citizens." Azkour also asserts claims under 42 U.S.C. §§ 1985 and 1986, alleging that the above-noted defendants, and defendants Sheldon Skip Taylor ("Taylor"), and the Law Offices Sheldon Skip Taylor ("LSST"), conspired to "deter him by intimidation and threat from freely, fully, and truthfully testifying to matters pending in the United States District Court for the Southern District of New York." According to Azkour, the "defendants conspired to injure Plaintiff in his person and property on account of his having attended and testified in the aforementioned pending matters." Furthermore, Azkour asserts causes of action against the defendants, under New York law, for defamation and intentional infliction of emotional distress ("IIED"). In addition, the complaint contains claims Azkour has made against LRT's previous owners and managers, for actions he alleges were taken by their attorney, in defending against an action Azkour brought under the Fair Labor Standards Act ("FLSA").
Before the Court is Azkour's application for the court to appoint counsel to assist him in prosecuting this action.
LRT operates a restaurant and bar in Manhattan known as Ajna Bar; Azkour worked for LRT from October 2009, until his employment ceased in February 2010. During his tenure with LRT, Azkour performed the work of a busboy and food runner. After Azkour's employment with LRT ended, he commenced a civil action against it and members of its management for failure to compensate him fully in accordance with FLSA, and analogous New York laws and regulations, and for retaliating against him. That action is pending. In the instant action, Azkour alleges that Taylor, LRT's former counsel in the pending FLSA action, asked inappropriate questions during Azkour's deposition, made false and defamatory statements about him, and conspired with Haouzi, Maucort and Comperiati to interfere with his rights.
In January 2010, Azkour filed a: (1) charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC"), alleging that LRT's previous owners and managers discriminated and retaliated against him; and (2) complaint with the United States Department of Labor ("DOL"), alleging that LRT's previous owners and managers violated FLSA.
According to Azkour, about six weeks after his employment with LRT ceased, new owners and managers took control of the restaurant. On or about March 30, 2010, after the new owners and managers had taken control of LRT, Azkour approached Maucort, who, according to Azkour, is LRT's general manager, and requested that he be paid: 1) "full pay"; 2) back pay; 3) overtime compensation; 4) gratuities; and 5) service charges, to remedy "the unlawful acts of retaliation by the former managers." Azkour's request was denied. He returned to the restaurant on April 1, 2010, and renewed his request. Azkour recalls that, during his April 1, 2010 visit to the restaurant, Maucort told him that "LRT and its new management would not be able to address his claims because they are not liable for the wrongs done to him by the former managers." Thereafter, Azkour asked to meet with Haouzi, who, Azkour maintains, is LRT's owner, chief executive officer and chief operating officer. However, Maucort, accompanied by armed security guards, directed Azkour to leave the premises. Instead of exiting the restaurant immediately, Azkour requested a letter of reference to assist him in securing new employment, but Maucort ignored his request, and according to Azkour, made a derogatory, racially-charged utterance about him. Azkour contends that the presence of the security personnel intimidated him, so he did not press his request further, and left the premises peacefully.
Civil litigants have no constitutional right to counsel. See United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981). However, 28 U.S.C. § 1915(e)(1) authorizes a district court to "request an attorney to represent any person unable to afford counsel." Azkour made a successful application to proceed in forma pauperis; accordingly, he is within the class of litigants to whom 28 U.S.C. §1915(e)(1) speaks. "In deciding whether to appoint counsel, [a] district [court] should first determine whether the indigent's position seems likely to be of substance." Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir. 1986). Once this threshold is met, the court should proceed to consider other criteria "such as the factual and legal complexity of the case, the ability of the litigant to navigate the legal minefield unassisted, and any other reason why in the particular case appointment of counsel would more probably lead to a just resolution of the dispute." Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001) (citing Hodge, 802 F.2d at 61-62). An indigent's claim is likely to be of substance if it has merit and "appears to have some chance of success[.]" Hodge, 802 F.2d at 60-61. Pleadings drafted by a pro se litigant, such as Azkour, are to be construed liberally and interpreted to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). In reviewing Azkour's complaint, the Court has applied this standard.
I. Intentional Discrimination Claims
Section 1981 of Title 42 of the United States Code provides, in part, that [a]ll persons within the jurisdiction of the United States shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.
To establish a § 1981 discrimination claim, a plaintiff must demonstrate: (1) that she is a member of a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and (3) that the discrimination concerned one or more of the activities enumerated in § 1981. See Lauture ...