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Maidana v. Boston Culinary Group, Inc.

United States District Court, E.D. New York

July 27, 2018

ROBERTO MAIDANA, Plaintiff,
v.
BOSTON CULINARY GROUP, INC., d/b/a CENTERPLATE Defendant.

          LAW OFFICES OF FAUSTO E. ZAPATA, PC BY: FAUSTO E. ZAPATA, JR. ATTORNEY FOR THE PLAINTIFF

          WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP BY: WILLIAM FUGER CUSACK, III ATTORNEYS FOR THE DEFENDANT

          MEMORANDUM AND ORDER

          STERLING JOHNSON, SENIOR DISTRICT JUDGE

         Defendant Boston Culinary Group, Inc., d/b/a Centerplate brings this motion (the "Motion") to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, (See Dkt. No, 15, Def, 's Mot, to Dismiss; see also Fed, R. Civ, P. 12(b)(6)). Plaintiff, Roberto Maidana, has filed six claims in total against Defendant: federal, state and city discrimination and retaliation claims, all of which Defendant seeks to have dismissed. (See Dkt, No. 1, Compl.) Based on the submissions of the parties, the oral argument on June 14, 2018, and for the reasons stated herein, the Motion is granted, I. BACKGROUND

         For the purpose of this Motion, all the facts alleged in the Plaintiffs complaint will be taken as true, Plaintiff worked as a bartender for Defendant's Fig's Cafe located in LaGuardia Airport, Terminal B (hereinafter "Fig's Cafe" or "Defendant"). (See Compl. ¶ 8-10.) An incident occurred on January 2, 2015, when a customer that Plaintiff was serving made racially disparaging comments towards Plaintiff and his coworkers, including something to the effect that, "colored people from all of all [sic] over the world working at Fig's Cafe and . . . none spoke English." (Id. ¶ 17.) Plaintiff is a dark-skinned Argentinian man with a Spanish accent, and he was "humiliated and embarrassed" by the customer's comments. (hi ¶ 6, 19.) Nevertheless, he continued to serve the customer. (Id., ¶ 19.) The customer indicated that he would be leaving a tip in cash, at which point Plaintiff confronted him and asked outright for his tip. (See Compl. ¶ 22-23.) The customer "threw" $2 at Plaintiff and left. (Id. ¶ 23; see also Cusack's Decl. Ex, C (same). But see Cusack's Decl. Ex. B, at 1 (customer's complaint says simply that he "left" the $2).) As Plaintiff conceded at oral argument on June 14, 2018, Plaintiff exited the bar and gave the $2 tip back to the customer. (See Tr. of Status Conference at 2, Maidana v. Boston Culinary Grp.. No. 16-CV-2342 (E.D.N.Y. June 14, 2018)). On January 3, 2015, the customer sent a letter of complaint to Defendant regarding the slow service and the "embarrassing moment" when Plaintiff returned his tip at his departure gate and allegedly berated him. (See Compl. ¶ 26; see also Dkt. No. 15, Cusack's Decl. Ex. B., at 1.)[1]

         Defendant suspended Plaintiff pending investigation, and invited him to submit a written statement explaining what had occurred from his perspective. (See Compl. ¶ 27-28.) Plaintiff told his supervisor, Daniel Mora, about the customer's derogatory comments. (See id. ¶ 28-29.) On January 9, 2015, Plaintiff submitted a written statement to his General Manager. (See id. ¶ 30.) On January 30, 2015, Defendant sent Plaintiff a letter informing him that they had concluded their investigation and had decided to terminate Plaintiffs employment. (See id. ¶ 31.) Defendant cited abandonment of post as the reason for the decision. (See Tr. at 2).

         II. DISCUSSION

         A. Scope of the Complaint

         On May 10, 2016, Plaintiff filed a Complaint against Defendant claiming that, by terminating his employment, Defendant had unlawfully discriminated against him on the basis of his race, color and national origin, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq. (hereinafter, "Title VII"), the New York State Human Rights Law, Executive Law §§ 290, et seq. ("NYSHRL") and the New York City Administrative Code §§ 8-101, et seq, ("NYCHRL"). (See Compl.) Defendant filed the Motion on August 26, 2016. (See Dkt. No. 15, Def.'s Mot. to Dismiss.)

         Defendant claims that the customer complaint and Plaintiffs statement were incorporated by reference into Plaintiffs complaint. (See Dkt. No. 17.) They were not attached to the complaint, so in order for the Court to deem them to be part of the complaint at the motion to dismiss stage they must either be incorporated by reference or "integral to the complaint," See, e.g., Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir. 1985) ("The pleading is deemed to include any document attached to it as an exhibit, ... or any document incorporated in it by reference."); Deluca v. AccessIT Grp., Inc. 695 F.Supp.2d 54, 60 (S.D.N.Y. 2010) ("[E]xtrinsic documents may be considered as part of the pleadings if they either are (1) attached to the complaint; (2) incorporated into the complaint by reference; or (3) integral to the complaint.").

         Plaintiff makes specific allegations in his complaint regarding the customer complaint and his own signed statement. (See Compl. ¶ 26-27, 30.) Both the customer's complaint and Plaintiffs signed statement are therefore incorporated by reference into Plaintiffs complaint. See Kelly v. N. Shore-Long Island Jewish Health Sys, 166 F.Supp.3d 274, 284 (E.D.N.Y. 2016) (incorporating letter by reference in employment discrimination case based on Plaintiffs specific allegations regarding the correspondence in the complaint).

         B. Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6)

         Under Rule 8 of the Federal Rules of Civil Procedure, Plaintiffs complaint need only be a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a). The Supreme Court has interpreted Rule 8 narrowly, however, to require "more than labels and conclusions," holding that "a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Specifically, "[f]o 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). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court ...


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