United States District Court, S.D. New York
ORDER AND OPINION
ANDREW L. CARTER, Jr., District Judge.
Plaintiff Ehsan Khan ("Khan") brings this action for declaratory judgment and monetary damages, as well as costs and attorney's fees, against defendants Hilton Worldwide, Inc. ("Hilton") and Derrick Carlo ("Carlo") in his individual capacity. This is a suit alleging retaliation for Khan's complaints of religious and national origin discrimination, as well as retaliation, by his previous employer, Hilton. Khan sues Hilton under Title VII and both Hilton and Carlo under the New York City Human Rights Law ("NYCHRL"). Specifically, Khan alleges that the defendants (1) rejected his application for the full-time position of "Secondary B-List Banquet Server" in response to his having filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on April 28, 2011 and (2) failed to rehire him for the position of "Secondary B-List Banquet Server" in response to his having filed a complaint with the EEOC on December 21, 2011. This Opinion resolves the defendants' Motion to Dismiss.
Khan's Title VII retaliation claims against Hilton are dismissed as time-barred, except the failure to rehire claim stemming from his December 21, 2011 EEOC charge. Khan's claims against both defendants under the NYCHRL, which has a longer statute of limitations and a lower threshold for liability, survive as well. For the reasons elaborated herein, the defendants' Motion is GRANTED in part and DENIED in part.
On or around November 5, 2005, Khan began working for Hilton as a "Cafe Attendant" at the Starbucks inside the Waldorf Astoria New York ("the Waldorf"), which paid approximately $27.00 per hour. Compl. ¶ 13. The Waldorf is owned, operated, and maintained by Hilton. Id. ¶ 10. In or around November 2005, Khan also started working for Hilton as an "On-Call Banquet Server" whenever additional servers were needed. Id. ¶ 14. Throughout the course of his employment, Khan understands his performance to have been above average. Id. ¶ 45. In or around August 2010, Khan observed and reported an incident to Hilton's Human Resources Department in which his co-worker, Mohammed Uddin, asked his supervisor, Katherine Theosdic, "Why don't you like me? Is it because I'm Muslim?" Id. ¶ 15. Theosdic exclaimed to Uddin, "Yes, it's because you are Muslim!" Id. On or around April 11, 2011, Hilton terminated Khan on the stated bases that he had taken coffee without paying for it and had remained on-site for approximately one hour after his scheduled shift had ended and he had signed out. Id. ¶ 16. However, all of Khan's non-Muslim co-workers regularly drank coffee without paying, and most of his non-Muslim co-workers remained on the premises after signing out, without penalty. Id.
On or around April 28, 2011, Khan filed a complaint with the EEOC in which he complained that Hilton had terminated his employment due to his religion and in retaliation for his having complained of workplace discrimination to HR in August 2010. Id. ¶ 17. On or around June 21, 2011, Khan and Hilton entered into an agreement whereby Hilton reinstated Khan in his prior position in exchange for his withdrawal of the August 28, 2011 charge with prejudice. Id. ¶ 18. Preferring the duties of an "On-Call Banquet Server" to those of a "Cafe Attendant, " on or around October 11, 2011, Khan applied for the full-time position of "Secondary B-List Banquet Server." Id. ¶ 19. On or around that same date, Khan was interviewed by Hilton's Manager, Paul Dasilva,  and took an "interview exam" administered by the same. Id. ¶¶ 20, 23.
Hilton hired 10 new "Secondary B-List Banquet Servers, " but Khan was not one of them. Id. ¶ 20. On or around November 2, 2011, Khan received a letter from Lisa Dash-Grimes, Hilton's Director of Recruitment, which stated, "Although your qualifications are impressive, we regret we cannot take advantage of your skills and experience at this time." Id. ¶ 21. In or around mid-November 2011, Khan complained to Carlo, HR Director at the Waldorf, that he felt he was being retaliated against for having filed his April 28, 2011 EEOC complaint. Id. ¶¶ 11, 22. Carlo replied, "Don't worry. Your score on the test was almost there. You just missed by a whisker. Apply again next year." Id. ¶ 22. However, Dasilva, who had administered the test, told Khan that he had performed very well on the exam and would be receiving information regarding a second round of interviews. Id. ¶ 23. When the defendants finally showed Khan his test, he realized that it was not the exam he had completed. Id. ¶ 24. Rather, the applicant's name and answers seemed to have been written by the same person who graded the exam. Id.
On or around December 21, 2011, Khan filed another complaint with the EEOC, alleging that Hilton had declined to hire him in retaliation for the April 28, 2011 charge. Id. ¶ 25. On or around June 24, 2012, the defendants closed the Starbucks where Khan worked, resulting in his termination as a "Cafe Attendant" and an "On-Call Banquet Server." Id. ¶ 26. On or around August 9, 2012, Carlo called all of the employees who had been laid off due to the closing and informed them that additional "Secondary B-List Banquet Server" positions would be opening up the following month. Id. ¶ 27. After hearing this, Khan informed Carlo that he would be applying for the position, and Carlo replied, "Of course you will get the job if you pass the test. You guys are already in-house employees." Id. Just hours after this conversation, Khan received an email from the defendants titled "Application Status" and stating, "Thank you for your interest in Job ID: 71801, the Secondary B-List Banquet Server position with the Waldorf Astoria at 301 Park Avenue, New York, NY. Upon thorough review of your qualifications and experience, we will not be considering you further for this position." Id. ¶ 28.
Khan considered the email extremely suspicious because he had not yet applied for the position. Id. ¶ 29. Moreover, it is Khan's understanding that none of his co-workers received such a notice. Id. Further, the email could not have been referring to the full-time "Secondary B-List Banquet Server" position Khan previously applied for on or around October 11, 2011 because none of the 12 other applicants who were rejected, including Tom Ivezic, Anthony Figuccio, Pavin Seratin, Sharif Ahmed, M. Alam, Mike Chaudhary, Manjour Chaudhary, Salvatore Lercara, M. Simo Oumzil, Wahid Adwan, Spiro Dzelvez, and John Vigoya, received such a notice. Id. ¶ 30.
On or around September 30, 2012, Defendants posted the "Secondary B-List Banquet Server" position on Hilton's website and on the bulletin board at the employees' entrance. Id. ¶ 31. In or around early October 2012, Khan applied for the job. Id. ¶ 32. On or around October 11, 2012, Khan interviewed with Hilton's Assistant Banquet Manager, Gabriel, for the position, during which time Khan took the same "interview test" he had taken the year prior. Id. ¶ 33. On or around October 20, 2012, Khan interviewed with Gabriel again, during which time Gabriel informed him that he had passed the "interview test." Id. ¶ 34. On or around December 6, 2012, Khan interviewed for a third time with Hilton's Banquet Director, Gene, and its Food and Beverage Director, Tom Long. Id. ¶ 35. On or around January 14, 2013, Khan interviewed for a fourth time with Hilton's Resident Manager, Jeffrey, its General Manager, Eric Long, and its Assistant General Manager, Mr. McDermott. Id. ¶ 36.
Khan understands that in or around February or March 2013, Hilton hired the following individuals to be "Secondary B-List Banquet Servers": Robert Arnold, Tofal Liton, Francis Butters, Jose Bermio, and Ahmed Mostaque. Id. ¶ 37. None of the aforementioned individuals had previously complained of discrimination by the defendants. Id. Moreover, Khan understands that none of the hired individuals had as much experience as he did working as a "Server" in Hilton's Banquet Department. Id. ¶ 38. In fact, it is Khan's understanding that, except for him, all of the individuals who had been terminated due to the closing of Starbucks on or around June 24, 2012 were subsequently rehired into a position of their choice. Id. ¶ 39. In or around May 2013, Khan called Carlo for an update on the status of his application and Carlo stated, "We still don't know." Id. ¶ 40.
STANDARD OF REVIEW
To withstand a motion to dismiss, a complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The complaint "need not include detailed factual allegations, but must contain sufficient factual matter... to state a claim to relief that is plausible on its face." Corona Realty Holding, LLC v. Town of N. Hempstead, 382 F.Appx. ...