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Rasmy v. Marriott International, Inc.

United States District Court, S.D. New York

February 23, 2017

Gebrial Rasmy, Plaintiff,
Marriott International, Inc., d/b/a JW Marriott Essex House Hotel, Defendant.



         Plaintiff Gebrial Rasmy, proceeding pro se, brings this action against his former employer Marriott International, Inc. d/b/a JW Marriott Essex House Hotel ("Marriott").[1]Affording the complaint the requisite liberal construction, Rasmy alleges that Marriott subjected him to a hostile work environment on the basis of his religion and national origin and retaliated against him for complaining of such treatment, including by ultimately terminating his employment. Rasmy asserts claims under Title VII of the Civil Rights of 1964, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-101, et seq. ("NYCHRL"). Marriott moves to dismiss Rasmy's complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, Rasmy's state and city-law hostile environment claims must be DISMISSED on jurisdictional grounds not raised by the parties, and Marriott's motion is otherwise DENIED.

         I. Background

         A. Allegations[2]

         Rasmy is of Egyptian descent and a practicing Christian. Complaint, Dkt. No. 2 ("Comp."), ¶ 14. In 1993, Marriott first hired Rasmy as a part-time banquet server. Id. ¶ 12. In light of his "excellent performance" in that capacity, Marriott promoted him to full-time banquet server in 1998. Id. ¶ 13. For approximately twenty years, Rasmy worked for Marriott without issue. Id. ¶ 15.

         In 2012, Rasmy reported wage theft by several of his fellow employees to human resources director Karen Doherty. Id. ¶ 16. When Doherty failed to respond to this report, Rasmy elevated the matter to Marriott's corporate office, prompting Doherty, sometime later, to accuse Rasmy of creating "extra work for her" and to warn that "next time she would fire him." Id. ¶¶ 17-18 (internal quotation marks omitted).

         Following these initial reports to human resources and corporate management, Rasmy's co-worker and union delegate, Estratue Stamatis, began directing various ethnic and religious slurs against him, calling him, among other things, "camel, " "mummy, " "fucking Egyptian, " and "fucking Christian." Id. ¶ 19 (internal quotation marks omitted). In addition, Stamatis called Rasmy a "rat, " and "coerced" Rasmy's fellow employees to sign a petition in support of Rasmy's termination. Id. Rasmy reported these developments to Doherty and to unspecified "[m]anagement" personnel but "nothing was done to stop the harassment, " which continued. Id. ¶ 20. At some point, additional co-workers, Sesskon Pongpanta and Tehrani Mehrani, joined in Stamatis's verbal abuse of Rasmy. Id. ¶ 21.

         Rasmy filed a charge of discrimination with the Equal Employment Opportunity Commission (the "EEOC") in approximately May 2013, which was dual-filed with the New York State Division of Human Rights (the "NYSDHR"). Id. III.A., ¶ 22. In both 2014 and 2015, Rasmy submitted additional complaints to unspecified individuals or departments within Marriott, complaining of Stamatis's, Pongpanta's, and Mehrani's conduct. Id. ¶¶ 23-24. In approximately December 2014 and May 2015, Rasmy filed additional discrimination charges with the EEOC. Id. III.A, ¶ 25. The May 2015 charge, at least, was dual-filed with the NYSDHR. Id. ¶25.

         Shortly after the filing of Rasmy's May 2015 charge, Stamatis "on multiple occasions" called Rasmy a "fucking Christian, " a "pretentious Christian, " and a "mummy." Id. ¶ 26 (internal quotation marks omitted). In addition, Stamatis at times also referred to people of Christian faith generally as "good Christians" and/or "alcoholic Christians." Id. ¶ 27 (internal quotation marks omitted).

         Rasmy reported Stamatis's conduct to the director of his department in approximately early June 2015. Id. ¶ 28. The director, who is not identified by name, told Rasmy in response that there was "nothing [he] could do" to remediate the situation, and he declined to "file a report" on Rasmy's behalf. Id. ¶ 28 (brackets in original) (internal quotation marks omitted). Thereafter, Stamatis, at least, persisted in his course of conduct. Id. ¶ 29.

         In late June 2015, Rasmy sent an e-mail to Marriott's corporate office, complaining of "Stamatis['s] religious and national origin harassment, " and the failures of both Doherty and "management" to intervene despite their awareness of the situation. Id. ¶ 30. That same month, Rasmy filed yet another charge with the EEOC, dual-filed with the NYSDHR. Id. ¶ 31.

         During the subsequent months, Stamatis, Pongpanta, and Mehrani continued to verbally "harass[]" Rasmy, prompting Rasmy to submit additional complaints to Marriott, none of which received a response. Id. ¶ 32-33. "Shortly after" one such complaint, Pongpanta "spit in [Rasmy's] face." Id. ¶ 34. Rasmy reported this development to "management, " which questioned Pongpanta "for the first time." Id. ¶¶ 35-36. In response to management's questions, it is alleged, Pongpanta falsely claimed that Rasmy had in fact "spit at him." Id. ¶ 36. Based on Pongpanta's accusation, Marriott suspended Rasmy for "exhibiting] hostility toward[] his coworker." Id. ¶37. On May 24, 2016, Marriott terminated Rasmy's employment. M¶38. In June 2016, Rasmy filed an additional charge with the EEOC. Id. III.A.

         Rasmy initiated the instant action on June 22, 2016. See generally id.

         B. Administrative Documentation

         Rasmy's pleading, which includes both a copy this District's form employment discrimination complaint completed by hand and a separate computer-processed long-form complaint, makes various references to administrative discrimination charges. In several instances, these references are somewhat vague, and at times they appear inconsistent with one another. As best as the Court can discern, it appears that the complaint explicitly alleges that Rasmy filed a total of five discrete charges with the EEOC and/or the NYSDHR: in May 2013, December 2014, May 2015, June 2015, and June 2016. See Id. III.A., ¶¶ 22, 25, 31. The complaint does not attach copies of any of these charges but does attach a single right-to-sue letter issued by the EEOC on March 22, 2016. Id. p. 5. The complaint both generally alleges that Rasmy has "exhausted all administrative remedies as required as a prerequisite to the filing of his instant Title VII and NYHRL claims, " id. ¶ 6, and specifically refers - it appears - to the March 22, 2016 right-to-sue letter, id. ¶ III.B.

         In support of its motion to dismiss, Defendant submits, among other things, a declaration of counsel, which attaches copies of certain discrimination charge notices received by Marriott as well as copies of certain underlying charges. These reflect the following filings by Rasmy: a charge of discrimination filed with the EEOC on May 21, 2015, dual-filed with the NYSDHR, alleging violations of Title VII; a charge of discrimination filed with the EEOC on June 23, 2015, dual-filed with the NYSDHR, making allegations of discrimination and retaliation but failing to cite a specific statute; a charge filed with the EEOC in or around June 2016 alleging violations of Title VII; and a complaint filed directly with the NYSDHR on June 14, 2016, dual-filed with the EEOC, alleging violations of both Title VII and the NYSHRL. See Declaration of Mark A. Saloman, Esq., Dkt. No. 19 ("Saloman Dec"), Exs. 1-4.

         As attachments to supplemental papers in opposition to Marriott's motion to dismiss, Rasmy submits a right-to-sue letter issued by the EEOC on November 18, 2014, two separate right-to-sue letters - corresponding to distinct charges - issued by the EEOC on March 22, 2016 (one of which is a duplicate of the letter attached to Rasmy's complaint), and a right-to-sue letter issued by the EEOC on September 19, 2016 (months after the initiation of this action). See Plaintiffs Supplemental Opposition to Defendant's Motion to Dismiss, Dkt. No 32 ("Supp. Opp."), at 5-9.

         II. Legal Standard

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a plaintiff is required to plead "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads sufficient factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "The plausibility standard is not akin to a 'probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully. Where a complaint pleads facts that are 'merely consistent with' a defendant's liability, it 'stops short of the line between possibility and plausibility of entitlement to relief" Id. (quoting Twombly, 550 U.S. at 557) (additional internal quotation marks omitted).

         In deciding a motion to dismiss, a court must "accept[] the complaint's factual allegations as true and draw[] all reasonable inferences in the plaintiffs favor." Steginsky v. Xcelera Inc. 1A\ F.3d 365, 368 (2d Cir. 2014). Documents filed pro se are "to be liberally construed ... and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citation omitted); see also Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) ("It is well established that the submissions of a pro se litigant must be construed liberally and interpreted to raise the strongest arguments that they suggest") (internal quotation marks omitted) (emphasis in original).[3]

         At the pleading stage, a court generally "must limit its analysis to the four corners of the complaint." Vassilatos v. Ceram Tech. Int'l, Ltd., 92-cv-4574, 1993 WL 177780, at *5 (S.D.N.Y. May 19, 1993) (citing Kopec v. Coughlin,922 F.2d 152, 154-55 (2d Cir. 1991)). It may, however, "consider 'documents attached to the complaint as an exhibit or incorporated in it by reference, matters of which judicial notice may be taken, or documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit.'" Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal alterations omitted) (quoting Brassv. Am. Film Techs., Inc.,987 F.2d 142, 150 (2d Cir. 1993)). With respect to the last category of materials, the Court of Appeals has emphasized that the "plaintiffs reliance on the terms and effect of a document in drafting the complaint is a necessary prerequisite to the court's consideration" thereof- "mere notice or possession is not enough." Chambers, 282 F.2d at 153 (emphasis in original). "[C]ourts in this Circuit have routinely taken judicial notice of EEOC determinations" when deciding 12(b)(6) motions targeting employment discrimination complaints. Frederick v. JetBlue Airways Corp., 14-CV-7238, 2016 WL 1306535, at *5 (E.D.N.Y. Mar. 31, 2016) (collecting cases); see also Taylor v. Vt. Dep't of Educ,313 F.3d 768, 776 (2d Cir. 2002) (court may look ...

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