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Azkour v. Haouzi

United States District Court, S.D. New York

July 17, 2017


          OPINION & ORDER

          RICHARD J. SULLIVAN, District Judge:

         Plaintiff Hicham Azkour ("Plaintiff or "Azkour"), proceeding pro se, brings this action against Defendants Jean-Yves Haouzi ("Haouzi"), Franck Macourt ("Macourt"), Jessica Comperiati ("Comperiati"), and Little Rest Twelve, Inc. ("LRT"), alleging that Defendants unlawfully discriminated against him on the basis of his Arab ancestry in violation of 42 U.S.C. § 1981 ("Section 1981"). (Doc. No. 40.)

         Now before the Court is the Report and Recommendation of the Honorable Kevin Nathaniel Fox, United States Magistrate Judge, recommending that the Court deny Defendants' motion for summary judgment. (Doc. No. 200 ("Report").) For the reasons set forth below, the Court partially adopts and partially rejects the Report.

         I. Background

         A. Facts

         LRT operated a restaurant and bar in Manhattan known as Ajna Bar, where Azkour worked as a busboy between October 10, 2009 and February 14, 2010. (Doc. No. 128 ¶ 28.)[1] On March 30, 2010, Haouzi became a shareholder of LRT, and Macourt became general manager of the restaurant. (Doc. No. 128 ¶ 30; Doc. No. 195 ¶¶ 8-9.) Azkour alleges that shortly thereafter, "[a]ll ex-employees of Moroccan national origin - without exception - were summarily terminated by" LRT "without good cause" and were replaced by "less qualified, less experienced employees of a different national origin." (Doc. No. 195-3 at 32-33.) In support of this allegation, Azkour attaches the affidavit of Zouheir Nezili, a man of Moroccan origin who worked at the Ajna Bar from June 1, 2006 until April 1, 2010. (Id. at 32.)

         On April 1, 2010 at approximately 4:00 p.m., Azkour visited the Ajna Bar for the purpose of reapplying for a job there. (Opp'n 56.1 ¶ 4; Doc. No. 195-1 at 22, 37.) Upon his arrival, Macourt overheard Azkour speaking Arabic with a waiter named Rashid. (Doc. No. 195-2 at 4-5.) Azkour asserts that he thereafter: (1) informed Macourt that he was Moroccan, (2) asked Macourt for the opportunity to reapply for a job at Ajna Bar, and (3) requested a letter of reference confirming he had once worked for Ajna Bar that he could use in connection with other job applications. (Doc. No. 195-2 at 4-5, 10.) Azkour acknowledges that he "was very, very, very persistent" in demanding that he be rehired or receive a letter of reference. (Id. at 4.) Azkour testified at his deposition that Macourt responded by becoming "irascible, " informing Azkour that he did not "want to see any Arabs here, " and instructing him not to "come back." (Id. at 5-6.) Azkour also testified that Macourt refused to provide him with a letter of reference. (Id. at 58:6-7.)

         B. Procedural History

         1. The FLSA Action

         On May 19, 2010, Azkour brought suit against LRT and certain of its former officers alleging violations of the Fair Labor Standards Act and the New York Labor Law, including failure to pay minimum wage and overtime during his brief employment at the Ajna Bar between October 2009 and February 2010, as well as retaliatory termination. (Doc. No. 10-cv-4132 (RJS), Doc. No. 1 (the "FLSA Action").) After Azkour obtained partial summary judgment against LRT on his FLSA retaliation claim, the Court held a trial on damages on July 21 and July 22, 2014 to determine principally whether Azkour's unemployment between February 14, 2010 and the date of trial had been proximately caused by Defendant's unlawful retaliatory termination. Although Azkour argued that he was entitled to back pay for the entire period, LRT argued that Azkour's prolonged period of unemployment was proximately caused by: (1) Azkour's inability to work due to his acknowledged mental illness, and/or (2) his failure to reasonably attempt to find comparable work. (No. 10-cv-4132 (RJS), Doc. No. 295 at 231:24-232:5.) The jury also considered whether Azkour was entitled to punitive damages.

         On July 22, 2014, the jury reached a verdict in which it concluded that LRT proximately caused 12 weeks of Azkour's unemployment - in other words, the jury found that Azkour was only entitled to back pay for the period between February 14, 2010 and May 9, 2010. (No. 10-cv-4132 (RJS), Doc. No. 279.) The jury also awarded Azkour $50, 000 in punitive damages. On February 12, 2015, the Court issued a post-trial decision, which denied Azkour's motion for judgment as a matter of law on the issue of back pay, granted Defendants' motion for judgment as a matter of law on the issue of punitive damages, and resolved all other remaining post-trial issues in the FLSA Action. Azkour v. Little Rest Twelve, No. 10-cv-4132 (RJS), 2015 WL 631377, at *1(S.D.N.Y. Feb. 12, 2015). Azkour thereafter appealed the Court's ruling, which was affirmed by the Second Circuit in its entirety on April 14, 2016. Azkour v. Little Rest Twelve, 645 F.App'x 98 (2d Cir. 2016), cert, denied, 137 S.Ct. 390, reh'g denied, 137 S.Ct. 716 (2017).

         On August 9, 2016, March 9, 2017, and March 17, 2017, Azkour submitted letters requesting vacatur of the judgments in the FLSA Action under Rule 60 of the Federal Rules of Civil Procedure. (No. 10-cv-4132 (RJS), Doc. Nos. 349, 351, 352.) On April 28, 2017, the Court denied the vacatur motion. Azkour v. Little Rest Twelve, No. 10-cv-4132 (RJS), 2017 WL 1609125, at *9 (S.D.N.Y. Apr. 28, 2017). On May 26, 2017, Azkour submitted a declaration and brief in support of his motion for reconsideration of its denial of his vacatur motion, which the Court denied the same day. (No. 10-cv-4132 (RJS), Doc. Nos. 356, 357, 358.) Azkour thereafter filed a notice of appeal of the denial of his vacatur motion to the Second Circuit on June 29, 2017 (Doc. No. 359), even though the Court denied Azkour in forma pauperis status for the purpose of appeal because any appeal would "lack[] an arguable basis in law or fact, " Azkour, 2017 WL 1609125, at *9 (citing Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995)).

         2. The Civil Rights Action

         On August 8, 2011, while the FLSA Action was proceeding, Azkour filed the instant suit against LRT and its new management - Haouzi, Macourt, and Comperiati - for employment discrimination in violation of Section 1981. (Doc. No. 2 (the "Civil Rights Action").) The Civil Rights Action is predicated on a different legal theory from the FLSA Action. Specifically, Azkour avers that the managers who took control of LRT on March 30, 2010 - Haouzi, Macourt, and Comperiati - failed to rehire him, declined to provide a letter of reference, and provided negative references about him to prospective employers because of his Arab ancestry. (Doc. No. 40 ¶¶ 6, 58-59.) Critically, however, Azkour sought the same remedy against LRT in both cases - that is, back pay for the period following Defendants' alleged adverse employment actions. (Doc. No. 40 ¶¶26, 48.)[2]

         On December 3, 2014, following the close of discovery, Defendants submitted a motion for summary judgment, along with a brief, declaration in support of their motion, and a Local Civil Rule 56.1 Statement. (Doc. Nos. 190, 191, 192, 193.) On December 11, 2014, Azkour filed a declaration in response to Defendant's motion, a "response to Defendants' Rule 56.1 Statement, " and an opposition brief. (Doc Nos. 195, 196, 197.) On December 18, 2014, Defendants filed a reply. (Doc. No. 198.) On July 24, 2015, Judge Fox, to whom the Court referred the motion for a report and recommendation, filed the instant Report, in which he recommended that the Court deny Defendants' motion for summary judgment. (Doc. No. 200.) On September 8, 2015, both parties submitted objections to the Report. (Doc. Nos. 203, 204.) On September 8, 2015, Defendants filed a letter responding to Plaintiffs objections, and on September 11, 2015, Azkour filed a letter responding to Defendants' objections. (Doc. Nos. 205, 206.) Since that time, Azkour has barraged this Court with "numerous" submissions containing "offensive statements, personal insults, and threats directed at, and clearly intended to harass and intimidate, Defendants, their counsel, and even the Court." (Doc. No. 217 at 11; see also Doc. Nos. 206, 210, 213, 215, 223; No. 10-cv-4132 (RJS), Doc. Nos. 349, 351, 352.) These submissions have undoubtedly prolonged this litigation and prompted the Court to issue orders in this case and the FLSA case admonishing Plaintiff and setting conditions on when and how he may make Court filings. (Doc. No. 217; see a/so No. 10-cv-4132 (RJS), Doc. Nos. 355, 358.)

         II. Legal Standard

         A. Summary Judgment

         Pursuant to Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). There is "no genuine dispute as to any material fact" where (1) the parties agree on all facts (that is, there are no disputed facts); (2) the parties disagree on some or all facts, but a reasonable fact-finder could never accept the nonmoving party's version of the facts (that is, there are no genuinely disputed facts), see MatsushitaElec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); or (3) the parties disagree on some or all facts, but even on the nonmoving party's version of the facts, the moving party would win as a matter of law (that is, none of the factual disputes are material), see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         In determining whether a fact is genuinely disputed, the court "is not to weigh the evidence but is instead required to view the evidence in the light most favorable to the party opposing summary judgment, to draw all reasonable inferences in favor of that party, and to eschew credibility assessments." Weyant v. Okst, 101 F.3d 845, 854 (2d Cir. 1996). Nevertheless, to show a genuine dispute, the nonmoving party must provide "hard evidence, " D 'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998), "from which a reasonable inference in [its] favor may be drawn, " Binder & Binder PC v. Barnhart, 481 F.3d 141, 148 (2d Cir. 2007) (internal quotation marks omitted). "Conclusory allegations, conjecture, and speculation, " Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998), as well as the existence of a mere "scintilla of evidence in support of the [nonmoving party's] position, " Anderson, 477 U.S. at 252, are insufficient to create a genuinely disputed fact. A moving party is "entitled to judgment as a matter of law" on an issue if (1) it bears the burden of proof on the issue and the undisputed facts meet that burden; or (2) the nonmoving party bears the burden of proof on the issue and the moving party '"show[s]'- that is, point[s] out ... - that there is an absence of evidence [in the record] to support the nonmoving party's [position]." See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

         The Court must construe a pro se party's submissions "liberally and interpret[] [them] 'to raise the strongest arguments that they suggest.'" Triestmcm v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Even so, "[a] pro se plaintiff . . . cannot defeat a motion for summary judgment by simply relying on the allegations of his complaint; he must present admissible evidence from which a reasonable jury could find in his favor." Belpasso v. Port Auth. of N.Y. & N.J., 400 F.App'x 600, 601 (2d Cir. 2010) (citing Champion v. Artuz, 76 F.3d 483, 485 (2d Cir. 1996)).

         B. Review of a Magistrate Judge's Report and Recommendation

         A district court may accept, reject, or modify, in whole or in part, the findings or recommendations made by a magistrate judge. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Grassia v. Scully,892 F.2d 16, 19 (2d Cir. 1989). If a party "properly objects to - that is, raises objections that are clearly aimed at particular findings in-the magistrate judge's report, the district court reviews those findings de novo" Faucette v. Comm 'r of Soc. Sec, No. 13-cv-4851 (RJS) (HBP), 2015 WL 5773565, at *2 (S.D.N.Y. Sept. 30, 2015) (citations omitted); see also Maguire v. Mown, No. 02-cv-2164 (RJH) (MHD), 2004 WL 1124673, at *2 (S.D.N.Y. May 19, 2004) ("[T]he court is required to make a de novo determination of those portions of a report to which objection is made, ... by reviewing 'the ...

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