United States District Court, S.D. New York
MEMORANDUM & ORDER
J. NATHAN, UNITED STATES DISTRICT JUDGE
Gebrial Rasmy, proceeding pro se, brings this action
against his former employer Marriott International, Inc.
d/b/a JW Marriott Essex House Hotel
("Marriott").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
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.
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
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.
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.
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).
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.
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.
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.
initiated the instant action on June 22, 2016. See
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.
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.
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.
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).
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).
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 ...