Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Williams v. Victoria's Secret

United States District Court, S.D. New York

March 28, 2017

ROBERT WILLIAMS, Plaintiff,
v.
VICTORIA'S SECRET, Defendant.

          ORDER

          PAUL G. GARDEPHE, U.S.D.J.

         Pro se Plaintiff Robert Williams brings this action, pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq, ; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq, ; 42 U.S.C. § 1981 ("Section j 1981"); the New York State Human Rights Law ("NYSHRL"), N.Y.Exec. Law § 290 et seq; and the New York City Human Rights Law ("NYCHRL"), N, Y, C, Admin. Code § 8-101 et seq. Plaintiff alleges that he was formerly employed by Victoria's Secret Stores, LLC ("VSS"), and that VSS discriminated against him based on his race and age. (See Am. Cmplt. (Dkt. No. 5); Cmplt. (Dkt. No. 2)) Defendant has moved to dismiss the Amended Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to plead facts sufficient to permit a plausible inference of race or I age discrimination. (Dkt. No. 15) In the alternative, Defendant has moved for summary judgment, pursuant to Fed.R.Civ.P. 56, on the ground that Plaintiff was an independent contractor and not an employee of VSS. (Id.)

         On October 20, 2016, this Court referred Defendant's motion to Magistrate Judge Cott for a Report and Recommendation ("R & R"). (Dkt. No. 33) On January 27, 2017, Judge Cott issued an R & R recommending that Defendant's motion to dismiss be granted. (Dkt. No. 34)

         BACKGROUND

         I. THE AMENDED COMPLAINT'S ALLEGATIONS[1]

         Plaintiff is an African-American male who was 51 years old at the time relevant to the Amended Complaint. (See Am. Cmplt. (Dkt. No. 5) ¶ 9; Cmplt. (Dkt. No. 2) at 3)[2] On February 8, 2014, Elite Investigations, Inc. ("Elite") hired Plaintiff as a Security Shift Supervisor, with the "intention of... assign[ing] [Plaintiff] to [work at a] Victoria's Secret [store located at 1328 Broadway, New York, New York]." (Id. at ¶¶ 6, 9) The next day, on February 9, 2014, Plaintiff interviewed with VSS's Loss Prevention Manager, a man known as "Inron, " who is of Middle Eastern descent. (Id. ¶ 10) Inron "hired" Plaintiff for the position of Security Shift Supervisor at VSS. (Id.) As supervisor, Plaintiff oversaw other security officers assigned by Elite to VSS. (Id. ¶¶ 10-11)

         Plaintiff complains that he was not assigned "adequate office space" at the VSS store, and was told to use the breakroom "during downtime." (Id. ¶¶ 12, 14) Plaintiff also asserts that he "was the only individual in leadership who [did not have] adequate office space or [a] cubicle" at the store. (Id. ¶ 13) Plaintiff further alleges that in March 2014 Inron instructed him to avoid showing any "pattern of security protocol[, ] in an ongoing effort to prevent employee and/or customer theft." (Id. ¶ 17) According to Plaintiff, this is a "standard [strategy] in the security industry." (Id. ¶ 18) Pursuant to this approach, Plaintiff had "discretion" on how to deploy the security officers under his supervision, and the no-pattern "security protocol" resulted in Plaintiff having "substantial downtime" in the breakroom. (Cmplt. (Dkt. No. 2) at 5)

         During the time he worked at VSS, Plaintiff had no "disciplinary write ups, verbal warnings or poor performance reviews." (Am. Cmplt. (Dkt. No. 5) ¶ 15) Plaintiff claims that he was therefore "qualified for [the] position" of Security Shift Supervisor. (Id ¶ 16)

         Plaintiff further alleges that, during the time Plaintiff worked at VSS, Inron "repeatedly" commented that Inron was 36 years old, was "almost 40, " and was "getting old, " and that the workforce was "dominated by 20-29 year old individuals." (Id. ¶ 43)

         On April 17, 2014, Plaintiff arrived at work at his scheduled time of 11:00 a.m. He proceeded to the breakroom, with the intention of proceeding onto the sales floor at noon. (Id. ¶¶ 22-23) At about 11:50 a.m., Inron entered the breakroom with the store manager and assistant store manager "to use the vending machines." (Id. ¶ 24) Inron and Plaintiff "made eye contact, " but Inron did not suggest that Plaintiff "was engaged in any misconduct." (Id. ¶ 25) Inron also did not "advise [P]laintiff that the owner of Victoria's Secret and his executive team [were] upstairs doing their annual visit, " even though Plaintiff was a "team member in leadership and security." (Id. ¶¶ 25-26) After about five minutes, Inron and the managers left the breakroom. At about 11:57 a.m., Plaintiff proceeded onto the sales floor to relieve another security officer who was scheduled for a meal break. (Id ¶¶ 27-28)

         Once on the sales floor, Plaintiff was "ambushed loudly [and] in an unprofessional manner" by Inron in front of the store manager, the assistant store manager, the owner of Victoria's Secret and his management team, and customers who were entering and exiting the store. (Id. ¶¶ 29-30) Inron accused Plaintiff of "hanging out in the breakroom, " but he "never inquired [as to] the reason why [Plaintiff] was in the breakroom." (Id. ¶¶ 29, 31) The store manager intervened to say that the matter should be discussed later. (Id ¶ 33)

         At some point in the next few hours, Inron allegedly contacted Elite and "informed [Elite that] he did not want [P]laintiff back and/or this will be [P]laintiff s last day at Victoria's Secret." (Id. ¶ 36) Plaintiff learned of his "dismissal" when he called the Elite dispatcher several hours later about an unrelated matter. (Id. ¶¶ 39-40) Plaintiff told Elite that he was "leaving [the store] immediately" because he felt humiliated. (Id. ¶ 41) Plaintiff complains that he was never given an opportunity to tell his "side of the story" to VSS. (Id. ¶¶ 34, 37) Plaintiff further complains that Inron "was never disciplined" for his conduct and that Plaintiff was "singled out." (hi ¶ 45)

         According to Plaintiff, Inron used his presence in the breakroom "as an opportunity to [dismiss] [P]laintiff because he was over 40 years old." (Id., ¶ 43) Plaintiff further alleges that VSS's decision to "terminate" him was contrary to its "internal company policy, standards and disciplinary rubric." (Id. ¶ 38) Plaintiff also alleges, "[u]pon information and belief, . .. [that] [P]laintiff was eventually replaced by someone under the age of 40." (Id. ¶ 42)

         On or about October 14, 2014, Plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") alleging that VSS had discriminated against him on the basis of his race and age. The EEOC made no findings concerning Plaintiffs discrimination complaint, but issued a "right-to-sue" letter to Plaintiff on March 19, 2015. (Cmplt. (Dkt. No. 2) at 5-7)

         II. PROCEDURAL HISTORY

         The Complaint was filed on June 17, 2015. (Cmplt. (Dkt. No. 2)) On August 25, 2015, then-Chief Judge Preska issued an order directing Plaintiff to file an amended complaint within 60 days, because "Plaintiffs allegations are insufficient to state plausible federal employment discrimination claims." (Aug. 25, 2015 Order (Dkt. No. 4) at 4-5) Judge Preska's order instructed Plaintiff to disclose his race - about which the Complaint pleaded nothing - and to "provide [] facts from which an inference can be made that he was discriminated against because of his race and age." (Id at 4)

         On October 5, 2015, Plaintiff filed the Amended Complaint, asserting the following claims against VSS in its capacity as his alleged "joint employer": (1) race discrimination in violation of Title VII; (2) age discrimination in violation of the ADEA; (3) age discrimination in violation of Section 1981; (4) age discrimination in violation of the NYSHRL; and (5) age discrimination in violation of the NYCHRL. (See Am. Cmplt. (Dkt. No. 5) ¶¶ 48-75) On April 4, 2016, Defendant moved to dismiss the Amended Complaint, pursuant to Fed.R.Civ.P. 12(b)(6), for failure to plead facts sufficient to permit a plausible inference of race or age discrimination. In the alternative, Defendant moved for summary judgment, pursuant to Fed.R.Civ.P. 56, on the ground that Plaintiff was an independent contractor and not an employee of VSS, and therefore is "not entitled to the protection of [the cited civil rights] statutes." (Notice of Motion (Dkt. No. 15); Def. Moving Br. (Dkt. No. 16) at 5)

         On October 20, 2016, this Court referred the motion to Magistrate Judge Cott for an R & R. (Dkt. No. 33) On January 27, 2017, Judge Cott issued an R & R recommending that this Court grant Defendant's motion to dismiss the Amended Complaint, on the ground that -even assuming VSS was Plaintiffs employer - Plaintiff "has not pleaded facts from which one can plausibly infer age or race discrimination."[3] (R & R (Dkt. No. 34) at 8) Judge Cott further recommended that Plaintiff not be given leave to amend, because "any further attempt [to amend] would be futile." Id. at 28)

         Judge Cott's R & R gave notice that any objections were to be filed within fourteen days from service of the R & R, and that the "failure to file objections within fourteen (14) days will result in a waiver of objections and will preclude appellate review." (Id. at 29) (emphasis omitted) Plaintiff was granted an extension to March 8, 2017, to file objections (Dkt. No. 36), and he filed his objections on that day. (Dkt. No. 37) Defendant filed a response to Plaintiffs objections on March 22, 2017. (Dkt. No. 38)

         DISCUSSION

         I. LEGAL STANDARD

         A. Review of Magistrate Judge's Report and Recommendation

         In evaluating a magistrate judge's R & R, a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Under 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), a party may submit objections to the magistrate judge's R & R. Any objections must be "specific" and "written, " and must be made "[w]ithin 14 days after being served with a copy of the recommended disposition." Fed. R Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1).

         Where, as here, a party submits timely objections to an R & R, "[the district judge] shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1); see also Fed.R.Civ.P. 72(b)(3). "[O]bjections 'must be specific and clearly aimed at particular findings in the magistrate judge's proposal'" in order to invoke de novo review. See McDonaugh v. Astrue, 672 F.Supp.2d 542, 547 (S.D.N.Y.2009) (quoting Molefe v. KLM Royal Dutch Airlines. 602 F.Supp.2d 485, 487 (S.D.N.Y. 2009)). "[Where] a 'party makes only conclusory or general objections, or simply reiterates the original arguments, ' the court reviews the R & R strictly for clear error." Covington v. Five Points Corr. Facility, No. 11 Civ. 8761 (AT) (FM), 2016 WL 3407845, at * 1 (S.D.N.Y. June 16, 2016) (quoting Rivera v. Colvin. No. 11 Civ. 7469, 2014 WL 3732317, at *1 (S.D.N.Y. July 28, 2014)). A decision is "clearly erroneous" when, "upon review of the entire record, [the court is] left with the definite and firm conviction that a mistake has been committed." United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (quotation marks and citation omitted).

         The objections of parties proceeding pro se '"are generally accorded leniency, '" Milano v. Astrue. No. 05 Civ. 6527 (KMW) (DCF), 2008 WL 4410131, at *2 (S.D.N.Y. Sept. 26, 2008) (quoting Dixon v. Ragland. No. 03 Civ. 826 (LTS) (KNF), 2007 WL 4116488, at *1 (S.D.N.Y. Nov. 16, 2007)), and "construe[d]... to 'raise the strongest arguments that they suggest.'" Id. (quoting Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006)).

         B. Motion to Dismiss Standard

         "To survive a motion to dismiss, a complaint must contain 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 Atl. Corp. v. Twombly. 550 U.S. 544, 570 (2007)). "In considering a motion to dismiss . .. the court is to accept as true all facts alleged in the complaint, " Kassner v. 2nd Ave. Delicatessen Inc.. 496 F.3d 229, 237 (2d Cir. 2007) (citing Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002)), and must "draw all reasonable inferences in favor of the plaintiff." Id. (citing Fernandez v. Chertoff, 471 F.3d 45, 51 (2d Cir. 2006)).

         A complaint is inadequately pled "if it tenders 'naked assertion[s]' devoid of 'further factual enhancement, '" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557), and does not provide factual allegations sufficient "to give the defendant fair notice of what the claim is and the grounds upon which it rests." Port Dock & Stone Corp. v. Oldcastle Northeast, Inc., 507 F.3d 117, 121 (2d Cir. 2007) (citing Twombly. 550 U.S. at 545).

         "Although a court in deciding a Rule 12(b)(6) motion is generally limited to considering the facts alleged in the complaint, a district court may also consider documents appended to the complaint, documents incorporated by reference, and matters of which judicial notice may be taken." Johnson v. Cnty. of Nassau, 411 F.Supp.2d 171, 178 (E.D.N.Y.2006) (citing Allen v. WestPoint-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). "In addition, a court may also consider documents outside the pleadings if they are 'integral' to the complaint and upon which the ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.