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Uwakwe v. Bridging Access to Care, Inc.

United States District Court, E.D. New York

March 16, 2017



          DORA L. IRIZARRY Chief Judge

         On November 23, 2015, Plaintiff Victor Uwakwe ("Plaintiff) filed the instant action against his former employer, Bridging Access to Care, Inc. ("Defendant"), alleging that Defendant: (1) discriminated against him on the basis of national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); (2) retaliated against him for complaining about the discrimination; (3) created a hostile work environment; and (4) employed practices that had a disparate impact on him. (See Complaint ("Compl."), Dkt. Entry No. 1.)

         Pursuant to Rule 12 of the Federal Rules of Civil Procedure, Defendant moves to dismiss the Complaint for failure to state a claim for relief. (See Def's Mem. in Supp. of Mot. to Dismiss ("Def.'s Mem."), Dkt. Entry No. 8.) Plaintiff opposes. (See PL's Resp. in Opp'n to Mot. to Dismiss ("PL's Opp'n), Dkt. Entry No. 13.) Defendant also moves to dismiss the Complaint on the ground that the Court lacks subject matter jurisdiction, but has articulated no arguments to support this assertion. Nonetheless, the Court independently reviewed the Complaint and determined that it indeed has subject matter jurisdiction. Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001); Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000). For the reasons set forth below, Defendant's motion is granted in part and denied in part.


         Plaintiff is a Nigerian national who was employed by Defendant as an accountant for almost ten years. (Compl. ¶ 6.) Plaintiff began his employment on October 25, 2005, and was terminated first verbally on February 5, 2015, and in writing the following day. (Id. ¶¶ 14, 29.)

         Over the course of his employment, Plaintiff allegedly suffered discriminatory treatment due to his Nigerian nationality. (Id. ¶ 16.) Plaintiff alleges that this treatment included “degrading” actions from Defendant's Senior Program Director, Glenda Smith, who routinely ordered him to stop working in order to drive employees to specific locations or instructed him to pick up or deliver packages. (Id. ¶ 19.) Since non-Nigerian employees were not asked to perform these tasks, Plaintiff served as Defendant's “de facto taxi driver, or common messenger.” (Id.)

         Aside from performing additional tasks not required of his colleagues, Plaintiff claims that Defendant consistently denied him pay raises while other similarly situated non-Nigerian individuals received them. (Id. ¶ 20.) Although Plaintiff had received pay raises in the past, Defendant purportedly denied Plaintiff a pay raise in February 2015, and on other occasions during his employment. (Id. ¶¶ 20, 27.) Plaintiff also alleges that other non-Nigerian workers often received pay raises after performance evaluations, but that Plaintiff was denied these raises because he did not receive performance evaluations as often as his colleagues. (Id. ¶ 21.) Plaintiff states that, during his employment, he received only one performance evaluation, while his “counterparts received annual or at least more performance evaluations.” (Id.) Plaintiff claims that he also earned a lower salary than his non-Nigerian colleagues, and lists nine individuals who were hired after Plaintiff and who, while allegedly less qualified than Plaintiff, held comparable positions and performed similar functions to Plaintiff. (Id. ¶ 22.) Aside from receiving a lower salary than his colleagues and not receiving as many pay increases, Plaintiff was denied promotions and “other benefits of employment.” (Id. ¶ 28.)

         In early 2015, Defendant accused Plaintiff of stealing New York City Transit MetroCards. (Id. ¶ 23.) An investigation by the New York City Police Department (“NYPD”) cleared Plaintiff, and Plaintiff asserts that this accusation was rooted in Defendant's adverse stereotype concerning Nigerians. (Id.)

         On February 5, 2015, Plaintiff met with Defendant's Chief Executive Officer, Mr. Garcon, and complained about the above described conduct, including his complaint that he was paid less than his colleagues. (Id. ¶ 24.) Mr. Garcon purportedly was “enraged” at the allegations and immediately suggested that Plaintiff should “look for a new job.” (Id. ¶ 25.) After their meeting, Mr. Garcon called Plaintiff and asked him if he wanted “to be terminated.” (Id. ¶ 26.) Plaintiff alleges that he was terminated verbally that day, and in writing the next day. (Id. ¶¶ 14, 29.)

         Plaintiff's termination led him to file a charge of discrimination concurrently with the New York State Division of Human Rights (“NYSDHR”) and the U.S. Equal Employment Opportunity Commission (“EEOC”) on February 17, 2015. (See Ex. B to Declaration of Gregory P. Mouton, Jr., dated December 29, 2015 (“December 2015 Mouton Decl.”), Dkt. Entry No. 7-2; Compl. ¶ 9.) In the charge, Plaintiff identifies himself as Nigerian and asserts that he was discriminated against because he was denied promotions, pay raises and other employment benefits, paid a lower salary, and ultimately terminated because of his nationality. (Ex. B to December 2015 Mouton Decl., at 12.) Plaintiff received a right to sue letter from the EEOC, dated August 27, 2015, and timely commenced the instant action on November 23, 2015. (See Ex. A to Compl., Dkt. Entry No. 1-1.)

         On December 30, 2015, Defendant moved to dismiss the Complaint for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). (See generally Def.'s Mem.) Defendant contends that dismissal is warranted because Plaintiff has not alleged sufficient facts to state a claim for discrimination, retaliation, hostile work environment, or disparate impact. (Id. at 8-18.)


         Under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Pleadings are to give the defendant “fair notice of what the claim is and the grounds upon which it rests.” Dura Pharms., Inc. v. Broudo, 544 U.S. 336, 346 (2005) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957), overruled in part on other grounds by Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). “The pleading standard Rule 8 announces does not require ‘detailed factual allegations, ' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555).

         Under Rule 12(b)(6), a defendant may move, in lieu of an answer, for dismissal of a complaint for “failure to state a claim upon which relief can be granted.” To resolve such a motion, courts “must accept as true all [factual] allegations contained in a complaint, ” but need not accept “legal conclusions.” Iqbal, 556 U.S. at 678. For this reason, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice” to insulate a claim against dismissal. Id. “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Id. (quoting Twombly, 550 U.S. at 570). Notably, courts may only consider the complaint itself, documents that are attached to or referenced in the complaint, documents that the plaintiff relied on in bringing suit and that are either in the plaintiff's possession or that the plaintiff knew of when bringing suit, and matters of which judicial notice may be taken. See, e.g., Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).

         Defendant asserts that the Court may consider three exhibits attached to its motion to dismiss without converting the motion into one for summary judgment to wit: (1) Plaintiff's NYSDHR complaint; (2) Plaintiff's termination letter; and (3) the NYPD Verification of Crime/Lost Property Report (“NYPD Report”) concerning the MetroCard theft incident. (Def.'s Mem. at 5.) Plaintiff does not oppose the Court's consideration of these three exhibits. (See generally Pl.'s Opp'n.)

         Federal Rule of Civil Procedure 12(d) provides that, if on a Rule 12(b)(6) motion “matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” However, the Second Circuit has recognized “exceptions to Rule 12(b)(6)'s general prohibition against considering materials outside the four corners of the complaint.” Halebian v. Berv, 644 F.3d 122, 131 n. 7 (2d Cir. 2011). Under these exceptions, a court may consider: (1) “documents attached to the complaint as an exhibit or incorporated in it by reference”; (2) “matters of which judicial notice may be taken”; and (3) “documents either in plaintiff['s] 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) (quoting Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir.1993)).

         “Even where a document is not incorporated by reference, the court may nevertheless consider it where the complaint ‘relies heavily upon its terms and effect, ' which renders the document ‘integral' to the complaint.” Id. (internal citation omitted). A “court may take judicial notice of the records of state administrative procedures, as these are public records, without converting a motion to dismiss to one for summary judgment.” Evans v. New York Botanical Garden, 2002 WL 31002814, at *4 (S.D.N.Y. Sept. 4, 2002).

         Here, the Court takes judicial notice of Plaintiff's NYSDHR charge because it is a public document and a record of a state agency. See Volpe v. Nassau Cty., 915 F.Supp.2d 284, 291 (E.D.N.Y. 2013); Morris v. David Lerner Associates, 680 F.Supp.2d 430, 436 (E.D.N.Y. 2010). The Court also considers Plaintiff's termination letter because it is integral to the Complaint. Plaintiff alleges that he “was terminated from his employment by BATC on or about February 6, 2015, pursuant to a letter Plaintiff received from Defendant's CEO, Gasner Garcon.” (Compl. ¶ 14.) He also asserts that “Defendant terminated Plaintiff's longstanding employment for pre-textual reasons” and that the “genuine basis” for the termination was “discriminatory in nature and retaliatory.” (Id. at ¶ 15.) These allegations indicates that the letter made Plaintiff's termination formal and official and that, in initiating this action, Plaintiff “‘relie[d] heavily upon [the letter's] terms and effect, ' thereby rendering the document ‘integral' to the complaint.” DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (internal citation omitted).

         Contrary to Defendant's contention, the NYPD Report is not incorporated by reference. A document is incorporated by reference if the complaint makes, “a clear, definite and substantial reference to the document[].” DeLuca v. AccessIT Grp., Inc., 695 F.Supp.2d 54, 60 (S.D.N.Y. 2010); see also Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir. 1985) (“[L]imited quotation does not constitute incorporation by reference.”). Notably, Defendant concedes that the Complaint mentions the police investigation, but not the police report itself. (Def.'s Mem., at 6; Compl. ¶ 23.) While subtle, this distinction is crucial because it demonstrates that Plaintiff did not make a clear and definite reference to the NYPD Report. See Madu, Edozie & Madu, P.C. v. SocketWorks Ltd. ...

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