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Azkour v. Haouzi

United States District Court, Second Circuit

June 28, 2013



KEVIN NATHANIEL FOX, Magistrate Judge.



Plaintiff Hicham Azkour ("Azkour"), proceeding pro se, brings this action pursuant, inter alia, to 42 U.S.C. § 1981 and the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12111, et seq., alleging that defendants Jean-Yves Haouzi ("Haouzi"), Franck Maucort ("Maucort"), Jessica Comperiati, and Little Rest Twelve, Inc. ("LRT"), discriminated and retaliated against him, "on account of his race (Arab)."

Before the Court is the defendants' motion to dismiss the § 1981 and ADA claims contained in Azkour's third-amended complaint. The motion is made pursuant to Federal Rule of Civil Procedure 12(b)(6), and is opposed by Azkour.

Allegations in the Complaint [1]

Defendant 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. After Azkour's employment with LRT ended, he commenced a civil action against it and members of its management for: (a) failing to compensate him fully, in accordance with the Fair Labor Standards Act of 1938 ("FLSA"), 29 U.S.C. § 201 et seq., and analogous New York laws and regulations; and (b) retaliating against him. That action is pending.

According to Azkour, several 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 were in place, 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 the April 1, 2010 visit to the restaurant, Maucort advised 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 requested a meeting with Haouzi, who, according to Azkour, is LRT's owner, chief executive officer and chief operating officer. However, Maucort, accompanied by armed security personnel, directed Azkour to depart from the premises. Instead of exiting the restaurant immediately, Azkour asked for a letter of reference to aid him in securing new employment, but Maucort ignored his request, and according to Azkour, made a derogatory, racially-charged remark about him. Azkour contends that he was intimidated by the presence of the security personnel, so he did not press his request further, and left the premises peacefully.

In January 2010, prior to his encounters with Maucort, 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, alleging that LRT's previous owners and managers violated FLSA. Azkour also alleges that "on or about January 22, 2010, [he] filed a complaint with EEOC, District of New York, alleging discrimination (Title VII, ADA, ADEA) and retaliation." Additionally, Azkour attached to his third-amended complaint, as Exhibit E, a "Notice of Right to Sue, " which was issued to him by EEOC on October 28, 2011. The notice indicates that it was "issued under Title VII, [and] the ADA." The record before the Court does not provide any information regarding when the charge that prompted the October 28, 2011 notice was filed; however, the notice indicates that the charge was filed some time within the 180 days that preceded its issuance.

Azkour maintains that, "[t]o this day[] Defendants have unlawfully refused to provide Plaintiff with a reference letter and have heretofore retaliated and discriminated against Plaintiff by giving negative professional reference [sic] to employers seeking to inquire about Plaintiff's employment with defendant." According to Azkour, "[e]mployees and former employees of defendant Little Rest Twelve, Inc., who do not belong to Plaintiff's protected class [Arab], received a different treatment from Defendants by being rehired, reinstated, promoted, given reference letters and excellent recommendations to prospective employers." Additionally, Azkour contends that "Defendants have willfully discriminated against Plaintiff by refusing to investigate his claims of discrimination, retaliation, and violations of the FLSA [and other statutes] by former management."

Defendants' Contentions [2]

The defendants contend that the allegations in Azkour's third-amended complaint are "insufficient to set forth a claim of employment based discrimination." According to the defendants, Azkour "had no contract' with [the defendants] of any kind. His claim is limited to the allegation that he approached the defendants after they assumed control of the restaurant, and that they failed to hire him or to investigate' his claims against the prior regime." The defendants contend that, "Azkour does not even allege that he applied for a job at [Ajna Bar]. He was never employed by defendants, and thus they could not have taken any adverse actions against him within any of the activities enumerated in the statute." The defendants assert that, Azkour's "failure to allege that he specifically applied for a position at Ajna Bar and was rejected or that he had any contractual right to a letter of reference precludes any claim of employment based discrimination against defendants."

The defendants aver that Azkour's § 1981 retaliation claim in this action is based on the same nucleus of facts as the claims Azkour made in his FLSA action. Furthermore, they assert that Azour makes no allegations that support a finding that "any of the remaining defendants herein had knowledge of his supposed protected activities or filings at the time he was denied reemployment or a letter of reference." In addition, the defendants maintain that Azkour's third-amended complaint "fail[s] to set forth cognizable claims of employment discrimination or retaliation under the ADA." For example, the defendants contend that "[o]ne element that must be pleaded to make out a prima facie case [under ADA] is that the employer had knowledge of the plaintiff's disability at the time of the alleged disparate or retaliatory treatment. The third amended complaint fails to satisfy this knowledge' requirement." According to the defendants, the complaint's "only allegation [referencing the defendants' knowledge, is found in Azkour's assertion]... that[:] as demonstrated by their filings with the Court, ' defendants have shown their knowledge and awareness of ...

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