United States District Court, S.D. New York
G. GARDEPHE, U.S.D.J.
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.)
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)
THE AMENDED COMPLAINT'S
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) 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.
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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." (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)
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.
Review of Magistrate Judge's Report and
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).
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).
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)).
Motion to Dismiss Standard
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)).
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).
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