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Green v. Jacob & Company Watches, Inc.

United States District Court, S.D. New York

March 31, 2017

WILLIAM E. GREEN, Plaintiff,
v.
JACOB & COMPANY WATCHES, INC., doing business as JACOB & CO; JACOB ARABO, an individual; and MG SECURITY SERVICES LLC, Defendants

          OPINION & ORDER

          PAUL A. CROTTY, United States District Judge.

         Plaintiff 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.

         For the 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.

         BACKGROUND[1]

         Green “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.

         Around 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.

         Green 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.

         Throughout 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, 31.

         On July 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.

         DISCUSSION

         I. Insufficient Service of Process

         Jacob & 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. ¶ 6.

         The 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.[2] 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.

         II. Failure to State a Claim

         A. Legal Standards

         In 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.

         B. ...


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