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Estevez v. S & P Sales And Trucking LLC

United States District Court, S.D. New York

November 22, 2017


          OPINION & ORDER


         Plaintiff Aneudys Carmelo Estevez brings this action against defendants S & P Sales and Trucking LLC ("S & P"), Kersia Corporation d/b/a Good-0 Beverage Company ("Good-0"), and Richard Hahn ("Hahn") (collectively, "defendants") under 42 U.S.C. § 1981 ("Section 1981"), the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"), the New York Labor Law ("NYLL"), and the New York City Human Rights Law, New York City Administrative Code § 8-101 et seq. ("NYCHRL"). Estevez alleges that, in connection with his employment or its termination, the defendants unlawfully engaged in racial and national origin discrimination; failed to pay him overtime wages; retaliated against him based on his involvement in a protected activity; and failed to pay him for unused vacation and sick time. Before the Court is defendants' motion to dismiss the claims of racial discrimination (brought under Section 1981 and the NYCHRL) and national origin discrimination (brought under the NYCHRL). For the following reasons, the motion is denied.

         I. Background

         A. Facts[1]

         Good-0, owned by Hahn, distributes Good-0 brand soft drinks. Am. Compl. ¶ 30. Good-O's distribution center and principal place of business is 1801 Boone Ave., Bronx, New York ("the Bronx Warehouse"). Around 2011, Hahn founded S & P, which conducted Good-O's transport operations. Id. ¶ 32. During the relevant period, Hahn, as the Chief Executive Officer of both Good-0 and S&P, made final personnel decisions, including with respect to hiring and firing. Id. ¶ 18, 22, 25-26. Estevez alleges that Good-0, S&P, and Hahn-the three defendants here-were joint employers.

         Estevez is of Hispanic race and Dominican national origin. Id. ¶ 28. In or before 2006, Estevez began working as a truck driver at the Bronx Warehouse for Good-0. Id. ¶¶ 29, 31. After S&P was founded in 2011, Estevez's paychecks came from S&P. Id. ¶ 32.

         Around 2013, defendants changed Estevez's responsibilities to that of a warehouse clerical worker; although defendants called him a "Warehouse Manager, " Estevez did not have any managerial responsibilities. Id. ¶ 33, 35-36. He continued to work out of the Bronx Warehouse. Id. ¶ 34. His supervisor was Joseph Pignatella ("Pignatella"), who also made decisions regarding hiring and firing, promotion and demotion on defendants' behalf Id. ¶ 34.

         On or around September 29, 2016, defendants terminated Estevez's employment. They alleged that he had been involved in a scheme to sell wooden pallets belonging to them. Id. ¶ 43. Estevez's responsibilities were transferred to two individuals: Keith Vera ("Vera"), a Portuguese individual believed by Estevez to be American-born, and "Mike, " an Italian-American, whose last name is not alleged. Id. ¶ 47. At all relevant times, defendants employed another "Warehouse Manager, " Joseph Pignatella Jr. ("Pignatella Jr."), a native-born American of Italian origin. Id. ¶ 45-46. Estevez alleges that although Pignatella Jr. stole a significant amount of cash from the joint employers, they did not terminate him. Id. ¶ 45. Pignatella Jr. appears to be Pignatella's son. See Dkt. 16 ("Defs' Br.") at 6; Dkt 24 ("Pl's Opp.") at 7.

         B. Procedural History

         Estevez filed the initial complaint on March 8, 2017. Dkt. 1. In pertinent part, it claimed that defendants' termination of Estevez was an act of racial discrimination under Section 1981 and the NYLL and national origin discrimination under the NYCHRL. On May 31, 2017, after defendants moved to dismiss these claims, Dkt. 11, Estevez filed the Amended Complaint. Dkt. 12. On June 23, 2017, defendants again moved to dismiss these claims, Dkts. 21-22. On June 26, 2017, Estevez filed an opposition. Pl's Opp. On July 5, 2017, defendants filed a reply. Dkt. 25 ("Defs' Reply Br.").

         II. Legal Standards on a Motion to Dismiss

         To survive a motion to dismiss under Rule 12(b)(6), a complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will only have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is properly dismissed where, as a matter of law, "the allegations in a complaint, however true, could not raise a claim of entitlement to relief" Twombly, 550 U.S. at 558. For the purpose of resolving the motion to dismiss, the Court must assume all well-pled facts to be true, drawing all reasonable inferences in favor of the plaintiff See Koch, 699 F.3d at 145 (2d Cir. 2012). However, that tenet "is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. A pleading that offers only "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555.

         III. Discussion

         A. Racial Discrimination ...

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