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Workneh v. Super Shuttle International Inc.

United States District Court, S.D. New York

March 28, 2017

ELIAS A. WORKNEH, Plaintiff,


          Edgardo Ramos, U.S.D.J.

         Pro se plaintiff Elias A. Workneh (“Plaintiff” or “Workneh”) brings this suit against defendants Super Shuttle International, Inc. (“Super Shuttle”), Veolia Transport (“Veolia”), and New York City Airporter (“Airporter, ” and collectively “Defendants”), alleging employment discrimination on the basis of his race, color, and national origin, and retaliation for complaining about said discrimination, all in violation of the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law(“NYCHRL”), and violations of the Family Medical Leave Act (“FMLA”). In his original and Amended Complaints, Workneh also asserted that the alleged discriminatory actions by his employer violated Title VII of the Civil Rights Act of 1964. However, by Opinion and Order filed on September 30, 2016 (the “September 30 Order”), the Court dismissed Plaintiff's Title VII discrimination claims against defendant Super Shuttle[1] with prejudice because Plaintiff failed to bring suit within 90 days of the issuance of the right to sue letter by the EEOC. See September 30 Order, Doc. 68, at 10-11. In the September 30 Order, the Court also determined that Plaintiff had adequately pleaded his retaliation claim, but dismissed the NYSHRL, NYCHRL, and FMLA claims without prejudice, granting Plaintiff until November 4, 2016 to file a second amended complaint. Id. at 19-20.

         Plaintiff filed his Second Amended Complaint (“SAC”) on November 4, 2016. Doc. 74. Currently pending before the Court are two motions: Defendants Veolia and Airporter's motion to dismiss the Amended Complaint pursuant to Rule 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure, Doc. 61, and all Defendants' motion to dismiss all of the claims in SAC, except the retaliation claim, Doc. 81. For the reasons set forth below, the motion to dismiss the discrimination claims is denied with prejudice, and the FMLA claim is dismissed without prejudice.

         I. Background

         The facts alleged by the Plaintiff are set forth in detail in the September 30 Order and will not be repeated here.[2] As relevant to the instant motions, in his opposition to Defendants' Motion to Dismiss, Plaintiff clarifies two incidents that he argues establish that his termination took place under circumstances that give rise to the inference of discrimination. First, he states that an individual named “Justin, ” who was under his supervision for two years, was a white ticket agent who got a “double promotion” within a few weeks' time. Doc. 84, at 6.[3] Although he does not make the comparison directly in his submission, presumably Plaintiff is relying on the allegation in the SAC that he was repeatedly passed over for promotions. SAC, Doc. 74, at 6. Second, he alleges that in connection with the vacation he took in July 2013, during which he first filed a discrimination complaint with the EEOC, a human resources generalist and the Veolia human resources vice president discussed his EEOC complaint. Doc. 84, at 7-8. According to Plaintiff, the two discussed that “Mr. Workneh left to his country taking unauthorized vacation and then asked Mr. Don if it is ok to terminate Mr. [Workneh] since we don't know where he is.” Id. at 8. From that snippet of conversation, Plaintiff argues that “Telling someone race/national origin to [human resources] then request hiring or termination is discriminatory.” Id.

         As concerns his FMLA claim, in the SAC Plaintiff alleges that he was an eligible employee entitled to FMLA leave, that he worked at the Company for more than one year, that he worked more than 1250 hours over the course of 12 months, and that the company had more than 50 employees and was otherwise an “employer” within the definition of the FMLA. SAC at 11. He further asserts a continuing series of violations from January through July 2013, during which, he was repeatedly directed to come in to work while home sick. Id. at 10-11. Specifically, he alleges that in January 2013 he requested sick leave via text, but was scheduled to work and did report to work while taking over the counter medications. Id. at 10. Further, in February of 2013, he went to the hospital and was told by the doctor to stay home for three weeks to recover.[4] He alleges that he requested the time off, but was nonetheless scheduled to work. Id. When he reported to work, he provided his supervisors with the doctor's note and a “photo copy” of the medications he was prescribed to show the “sever[e]” condition he was in. Id. However, even while on leave, he was directed late one evening to open the facility at 4:30 a.m. He called his supervisors to remind them of his status but did not receive a call back, so he reported at 4:30 in the morning to open the facility, and then called to have another supervisor replace him because he was on medication. He left that day at 8:00 a.m. Id. Finally, as described in the September 30 Order, in July 2013, he was asked if he could postpone his vacation, which was scheduled for July 7 to July 24, by one week. He said that he could not because his vacation coincided with his “post-surgery appointment.” Id. at 11. It was during that vacation that he was terminated.

         II. Procedural History

         Plaintiff filed his initial Complaint on April 24, 2015 (“Compl.”). Doc. 2. It alleged that Defendants discriminated against him on the basis of his race, color, and national origin by (1) failing to promote him; (2) retaliating against him; (3) terminating him; and (4) creating a hostile work environment, all in violation of Title VII and the NYCHRL. Compl. at 1-3. He also alleged a violation of the FMLA. Id. at 3. The Complaint only named Super Shuttle and Airporter as defendants, and did not request a trial by jury. Id. at 1. On June 19, 2015, prior to Defendants being served, Plaintiff filed a “Notice of Motion to Amendment, ” seeking leave to amend the Complaint to add Veolia as a defendant, to request a trial by jury, and to allege a violation of the NYSHRL. Doc. 9. The Court granted the motion at a hearing on December 8, 2015, and the Amended Complaint was docketed on December 11, 2015. Doc. 28.

         Defendants Veolia and Airporter motion to dismiss the Amended Complaint was filed on August 15, 2016, Doc. 61, and the motion to dismiss the SAC as against all Defendants, save the retaliation claim, was filed on December 15, 2016. Doc. 81.

         III. Discussion

         A. Rule 12(b)(6) Motion to Dismiss Standard

         When ruling on a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014). The court is not required to credit “mere conclusory statements” or “threadbare recitals of the elements of a cause of action.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); see also Id. at 681 (citing Twombly, 550 U.S. at 551). “To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.'” Id. at 678 (quoting Twombly, 550 U.S. at 570). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). More specifically, the plaintiff must allege sufficient facts to show “more than a sheer possibility that a defendant has acted unlawfully.” Id. If the plaintiff has not “nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Twombly, 550 U.S. at 570; Iqbal, 556 U.S. at 680.

         The question in a Rule 12 motion to dismiss “is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Sikhs for Justice v. Nath, 893 F.Supp.2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 278 (2d Cir. 1995)) (internal quotation marks omitted). “[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) ‘is to test, in a streamlined fashion, the formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest regarding its substantive merits, '” and without regard for the weight of the evidence that might be offered in support of Plaintiff's claims. Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (quoting Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006)).

         The same standard applies to motions to dismiss pro se complaints. See Zapolski v. Fed. Republic of Germany, 425 F. App'x 5, 6 (2d Cir. 2011). While the Court is duty-bound to construe a pro se complaint liberally, Curcione, 657 F.3d at 122, even pro se plaintiffs asserting civil rights claims cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. A pro se plaintiff's pleadings still must contain “more than an unadorned, the defendant-unlawfully-harmed me accusation.” Iqbal, 566 U.S. at 678. A complaint that “tenders naked assertion[s] devoid of further enhancement” will not suffice. Id. (quoting Twombly, 550 U.S. at 557) (internal quotation marks omitted); see also Triestman, 470 F.3d at 477 (“[P]ro se status ‘does not exempt a party from compliance with relevant rules of procedural and substantive law.'”) (quoting Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983)). Additionally, as mentioned above, “[a] district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.” Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (emphasis added).

         B. State Law ...

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