United States District Court, S.D. New York
WILLIAM E. GREEN, Plaintiff,
JACOB & COMPANY WATCHES, INC., doing business as JACOB & CO; JACOB ARABO, an individual; and MG SECURITY SERVICES LLC, Defendants
OPINION & ORDER
A. CROTTY, United States District Judge.
William E. Green brings this action against Jacob &
Company Watches, Inc. (“Jacob & Co.”), Jacob
Arabo (together, the “Jacob Defendants”), and MG
Security Services LLC (“MG, ” and together with
the Jacob Defendants, “Defendants”) pursuant to
Title VII of the Civil Rights Act of 1964, the New York State
Human Rights Law (“NYSHRL”), the New York City
Human Rights Law (“NYCHRL”), and 42 U.S.C §
1981. On March 28, 2016, the Jacob Defendants and MG moved to
dismiss. Dkt. 44, 48. The Jacob Defendants asserted, among
other things, that Green had failed to properly effect
service of process. On April 12, 2016, Green opposed
Defendants' motions and cross moved for an extension of
time to serve process. Dkt. 51.
reasons described below, the Court grants in part and denies
in part Defendants' motions to dismiss; and grants
Green's motion for an extension of time to serve process.
“is a person of African-American descent.” Am.
Compl. ¶ 56. He was employed by Defendants, and was
Director of Security for Jacob & Co. from December 2011
through June 19, 2013. Id. ¶¶ 20, 23-24,
40. During his employment, Green witnessed Arabo's sister
and wife-both employees of Jacob & Co.-as well as Arabo
engaging in “unfair, disparate or discriminatory
treatment/conduct.” Id. ¶ 55-56. Around
March 2012, Green heard Arabo's sister and wife
“complain about a dark skinned person (Vincent Dillard)
being close to the entrance of the store, and advising that
‘we should not have monkeys up front.'”
Id. ¶ 56. Green spoke of his concerns about the
conduct he witnessed at Jacob & Co. to an MG employee,
Manny Gomez, but no action was taken. Id.
¶¶ 56-57. However, Gomez “recognized the
disparity of treatment of some of the African-American
employees.” Id. ¶ 56.
the time of Green's last month of employment,
“Arabo personally requested that [Green] approach some
of the dark skinned African-American employees, and terminate
their employment” even though they “were diligent
and conscientious employees.” Id. ¶ 58.
Green refused Arabo's request that he tell an
African-American co-worker, Anthony Presley, and a co-worker
of Hispanic origin “to go home and not return.”
Id. ¶ 59. He “advised [Arabo] that such
conduct, to terminate such employment, was based only upon
the color of their skin and was racially motivated, as
Plaintiff had heard multiple comments about their not
‘fitting the image of the store' or referring to
them as ‘monkeys.'” Id. ¶ 60.
Despite Green's protestations and objections, Defendants
“continued to subject [Green] to . . .
racially-offensive comments and remarks on a more routine
basis, including statements that African-Americans in suits
looked like monkeys.” Id. ¶ 34.
raised concerns about the “employment status” of
Presley to Arabo's nephew, Vadim, the general manager at
Jacob & Co. Id. ¶ 63. Vadim told Green to
tell Presley to return and continue his employment at the
store. Id. Several days later, however, Presley and
Green were both terminated. Gomez informed Green of his
termination and explained that Arabo ordered Green's
termination directly. Id. ¶ 43. Green
“believes the only cause of his termination was in
retaliation for his statements made objecting to the
discriminatory actions taken against other employees by the
Defendant, Jacob & Co.” Id. ¶ 63.
his employment, Defendants also “subjected plaintiff to
disparate treatment.” Id. ¶ 27.
Defendants did not take a number of adverse actions against
“similarly-situated non-minority and non-
African-American employees.” Id. Arabo
approved the adverse actions taken against Green, which were
taken “in response to and in retaliation for
[Green's] . . . complaints about . . . racially
discriminatory behavior.” Id. ¶¶ 27,
18, 2013, Green filed a charge of discrimination against
Jacob & Co. and MG with the Equal Employment Opportunity
Commission (“EEOC”). See Exhibit 2 to
the Declaration of Scott A. Weiss (Dkt. 45-2) (“EEOC
Charge”). Green indicated on the form that he was
discriminated against based on race, color, and age.
Id. He alleged that he had heard talk around the
store that Arabo's sister did not want a
“dark-skinned black employee, Vincent Dillard” at
the front door because “he looked like a monkey.”
Id. He also stated “Lydia [sic] a Hispanic man
who had been sent to the store that he ‘didn't fit
the profile of the store, '” and that that man was
“asked to leave and not come back.” Id.
And Arabo's sister allegedly made comments that guards
were too old and would ask them to leave and not return.
Id. Green alleged that after he asked and was
approved for a raise, he was subsequently told by Gomez that
Jacob & Co. “wanted to go in a different direction
with personnel.” He asserted that he was terminated
despite no significant conflicts with his performance and was
“replaced by a white man.” Id.
Insufficient Service of Process
& Co. moves to dismiss for insufficient service of
process. In support, it submits the Declaration of Alfredo
Crossman, the individual who purportedly accepted service on
behalf of Jacob & Co. Exhibit C to the Jacob
Defendants' Memorandum of Law in Support of their Motion
to Dismiss (Dkt. 49-3). Crossman is “employed by Jacob
& Co. to drive Arabo and [is] paid by Jacob &
Co.” Id. ¶ 2. The thrust of
Crossman's declaration is that he was never asked whether
he was authorized to accept service on behalf of Jacob &
Co., nor did he ever state that he was so authorized.
Id. ¶¶ 2, 8. In response, Green submits an
affidavit of the process server, Yoler Jean-Baptiste.
Affidavit of Yoler Jean-Baptiste (Dkt. 54). Jean-Baptiste
states that Crossman did in fact say that he was authorized
to accept service on behalf of Jacob & Co. Id.
Court thinks it is unclear that service was sufficient, but
determines that it is appropriate to grant Green's
request for an extension of time to serve. An extension must
be granted “if the plaintiff shows good cause for the
failure.” Fed.R.Civ.P. 4(m). “The following two
factors are relevant in a Court's evaluation of good
cause: (1) the reasonableness and diligence of
plaintiff's efforts to serve; and (2) the prejudice to
defendants from the delay.” Vantone Grp. Ltd. Liab.
Co. v. Yangpu Ngt Indus. Co., 13 Civ. 7639 (LTS) (FM),
2016 WL 3926449, at *4 (S.D.N.Y. July 15, 2016). Green used a
process server, who appeared to have timely and properly
served Jacob & Co., and Jacob & Co. appeared in this
action shortly after service, thus alleviating the concern of
prejudice. The Court therefore concludes that Green has shown
good cause for an extension. Green has 30 days from the day of
this Opinion & Order within which to serve Jacob &
Co. and file proof of service with the Court.
Failure to State a Claim
considering a motion to dismiss pursuant to Rule 12(b)(6),
the Court must accept the factual allegations of a complaint
as true and draws all inferences in the plaintiff's
favor. Global Network Commc'ns, Inc. v. City of
N.Y., 458 F.3d 150, 154 (2d Cir. 2006). The Court is
not, however, required to accept as true “[t]hreadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements.” See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to
dismiss, the factual allegations must “state a claim to
relief that is plausible on its face.” Id.