Tawfik v. Georgatos

UNITED STATES DISTRICT COURT CLE  RK

EASTERN DISTRICT OF NEW YORK 7/14/2021 5:  44 pm

----------------------------------X U.S. DISTRICT COURT

SALAH H. TAWFIK, EASTERN DISTRICT OF NEW YORK

LONG ISLAND OFFICE

Plaintiff,

MEMORANDUM & ORDER

-against- 20-CV-5832(JS)(AKT)

PETER GEORGATOS, ARCHIE GEORGATOS,

and PREMIER DINER,

Defendants.

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APPEARANCES

For Plaintiff: Salah H. Tawfik, pro se

134 La Bonne Vie, Apartment C

East Patchogue, New York 11772

For Defendants: Saul D. Zabell, Esq.

Diana Marie McManus, Esq.

Zabell & Collotta, PC

One Corporate Drive, Suite 103

Bohemia, New York 11716

SEYBERT, District Judge:

On or around November 30, 2020, plaintiff Salah H. Tawfik

(“Plaintiff”), proceeding pro se, initiated this action pursuant

to Title VII of the Civil Rights Act of 1964, as codified, 42

U.S.C. §§ 2000e to 2000e-17 (“Title VII”), by filing a Complaint

and an application to proceed in forma pauperis (“IFP”). (Compl.,

D.E. 1; IFP Mot., D.E. 2.) Currently before the Court is

Plaintiff’s In Forma Pauperis Long Form Application (AO 239) (the

“Long Form Application”). (Long Form Application, ECF No. 14.)

Upon review of the Long Form Application, the Court finds that

Plaintiff is qualified by his financial status to commence this

action without prepayment of the filing fees. And, upon review of

the Complaint, the Court finds that it fails to state a claim and

it is therefore is DISMISSED WITHOUT PREJUDICE pursuant to 28

U.S.C. § 1915(e)(2)(B)(ii) and Plaintiff is GRANTED LEAVE TO FILE

AN AMENDED COMPLAINT on or before August 23, 2021.

PROCEDURAL HISTORY

On December 8, 2020, the Court entered an Order denying

Plaintiff’s IFP request and directing him to remit the filing fee

within fourteen (14) days. (Dec. 8, 2020 Order, ECF No. 5.) In

that Order, the Court warned Plaintiff that “a failure to timely

comply . . . will lead to the dismissal of the Complaint without

prejudice and judgment will enter.” (Id. at 3.) Plaintiff did

not comply and on January 19, 2021, the Court entered an Electronic

Order granting Plaintiff an additional fourteen (14) days to remit

the filing fee. (See Jan. 19, 2021 Elec. Order.) In the

January 19, 2021 Electronic Order, the Court again warned

Plaintiff that a failure to pay the filing fee “will lead to the

dismissal of the Complaint without prejudice and judgment will

enter.” (Id.) On January 20, 2021, Defendants mailed the

Electronic Order to Plaintiff at his address of record. (Aff.

Serv., ECF No. 8.) Plaintiff did not respond to the January 19,

2021 Order or otherwise communicate with the Court. As such, on

February 17, 2021, the Court dismissed the Complaint without

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prejudice for failure to prosecute pursuant to Federal Rule of

Civil Procedure 41(b). (Feb. 17, 2021 Order, ECF No. 10.)

On or around March 11, 2021, Plaintiff filed a letter

that the Court liberally construed as a motion for reconsideration

of the February 17, 2021 Order dismissing the Complaint. (See

Letter Motion, ECF No. 12; Mar. 26, 2021 Order, ECF No. 13.) By

Order dated March 26, 2021, the Court granted reconsideration in

part and granted Plaintiff thirty days to complete and return the

Long Form Application. (Mar. 26, 2021 Order.) The Court otherwise

denied the motion and deferred ruling on whether it would direct

the Clerk of the Court to re-open this this case. (Id.) On

April 22, 2021, Plaintiff timely filed the Long Form Application.

BACKGROUND1

Plaintiff, using the Court’s form complaint for

employment discrimination, asserts claims against Peter Georgatos

(“Peter”), Archie Georgatos (“Archie”), and the Premier Diner (the

“Diner” and collectively, “Defendants”) pursuant to Title VII.

(See Compl.; see id. § II.) Specifically, Plaintiff alleges that

Defendants discriminated against him by terminating him on account

of his race, religion, and disability or perceived disability.

1 Excerpts from the Complaint are reproduced here exactly as they

appear in the original. Unless noted, errors in spelling,

punctuation, or grammar have not been corrected or noted.

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(Id. §§ III.A & D.) In its entirety, Plaintiff alleges:

I was hired by Mr. Georgatos on March 2018.

Someone to work only weekend I agreed to do so

I needed my job so bad specially I had no

income for 5 weeks. Mr. Georgatos refused to

let me work he fired me telling me to go look

for another job despite he was going to hire

someone else he discriminated against me

because my disability and that’s what his

lawyer said I will not be able to do my job I

also had a note from my doctor allowing me to

go back to work Mr. Georgatos couldn’t keep

his promise neither his kids by allowing me

not to handle liquors I was asked too many

times by his son to help him making drinks

going against my religious believes also too

many people were absent due to medical reasons

were able to return to work I couldn’t find a

job over 3 month caused a financial stress to

me I will ask the court to reward me $4800 due

to Mr. Georgatos firing me not giving me ahead

of time notice go looking for a job he adviced

me when I was out to call him back when ready

to return to work he lied to me.

(Id. § III.E.) Plaintiff also attached a Notice of Right to Sue

letter, dated September 16, 2020. (Id. § IV.B; id. at ECF p. 11.)

DISCUSSION

I. Plaintiff’s In Forma Pauperis Application is Granted

Upon review of the Long Form Application, the Court finds

that Plaintiff is qualified by his financial status to commence

this action without prepayment of the filing fees. See 28 U.S.C.

§ 1915(a)(1). Therefore, Plaintiff’s request to proceed in forma

pauperis is GRANTED.

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II. Consideration of the Complaint Under 28 U.S.C. § 1915

A. Standard of Review

28 U.S.C. § 1915 requires a district court to dismiss an

in forma pauperis complaint if the action is frivolous or

malicious, fails to state a claim upon which relief may be granted,

or seeks monetary relief against a defendant who is immune from

such relief. See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii). An action

is frivolous as a matter of law when, inter alia, it is based on

an “indisputably meritless legal theory” or when it “lacks an

arguable basis in law . . ., or [when] a dispositive defense

clearly exists on the face of the complaint.” Livingston v.

Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).

Courts are obliged to construe the pleadings of a pro se

plaintiff liberally and to interpret them to raise the “strongest

[claims] that they suggest.” Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and

citations omitted) (emphasis in original); Harris v. Mills, 572

F.3d 66, 72 (2d Cir. 2009). “But the ‘special solicitude’ in pro

se cases, has its limits –- to state a claim, pro se pleadings

still must comply with Rule 8 of the Federal Rules of Civil

Procedure, which requires a complaint to make a short and plain

statement showing that the pleader is entitled to relief.” Wynn

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v. Regus Mgmt. Grp. LLC, No. 21-CV-3503, 2021 WL 2018967, at *1

(S.D.N.Y. May 17, 2021) (quoting Triestman, 470 F.3d at 475).

Under Rule 8, a complaint must plead sufficient 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 has

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) (citations omitted). The

plausibility standard requires “more than a sheer possibility that

a defendant has acted unlawfully.” Id. While “detailed factual

allegations” are not required, “[a] pleading that offers ‘labels

and conclusions’ or ‘a formulaic recitation of the elements of a

cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at

557).

The purpose of Rule 8 “is to give fair notice of the

claim being asserted so as to permit the adverse party the

opportunity to file a responsive answer, prepare an adequate

defense and determine whether the doctrine of res judicata is

applicable.” Powell v. Marine Midland Bank, 162 F.R.D. 15, 16

(N.D.N.Y. 1995) (internal quotation marks, alterations, and

citation omitted). A pleading that only tenders naked assertions

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devoid of further factual enhancement” will not suffice. Iqbal,

556 U.S. at 678 (internal quotation marks and citation omitted).

And a court may dismiss a complaint that is “so confused,

ambiguous, vague or otherwise unintelligible that its true

substance, if any, is well disguised.” Salahuddin v. Cuomo, 861

F.2d 40, 42 (2d Cir. 1988).

B. Title VII and the Americans with Disabilities Act

In light of Plaintiff’s pro se status, and the Court’s

responsibility to construe pro se pleadings liberally, the Court

considers whether Plaintiff plausibly alleges claims under both

Title VII and the Americans with Disabilities Act (“ADA”).

Title VII provides that “[i]t shall be an unlawful

employment practice for an employer . . . to discharge any

individual, or otherwise to discriminate against any individual

with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual’s race, color, religion,

sex or national origin.” 42 U.S.C. § 2000e-2(a). “This

antidiscrimination provision prohibits employers from mistreating

an individual because of the individual’s protected

characteristics.” Williams v. New York City Dep’t of Educ., No.

21-CV-0520, 2021 WL 2338979, at *2 (S.D.N.Y. June 7, 2021) (citing

Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)). “Mistreatment

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at work that occurs for a reason other than an employee’s protected

characteristic or opposition to unlawful conduct is not actionable

under these federal antidiscrimination statutes.” Id.

“At the pleading stage in an employment discrimination

action, ‘a plaintiff must plausibly allege that (1) the employer

took adverse employment action against him, and (2) his race,

color, religion, sex, or national origin was a motivating factor

in the employment decision.’” Id. (quoting Vega v. Hempstead Union

Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015)). “Examples of

materially adverse changes include termination of employment, a

demotion evidenced by a decrease in wage or salary, a less

distinguished title, a material loss of benefits, significantly

diminished material responsibilities, or other indices unique to

a particular situation.” Vega, 801 F.3d at 85 (internal quotation

marks omitted) (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d

Cir. 2003)).

Under the ADA, employers are prohibited from

“discriminat[ing] against a qualified individual on the basis of

disability in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation, job

training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). A prima facie case of

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discrimination under the ADA requires that the plaintiff establish

that: “(1) the employer is subject to the ADA; (2) the plaintiff

is disabled within the meaning of the ADA or perceived to be so by

her employer; (3) she was otherwise qualified to perform the

essential functions of the job with or without a reasonable

accommodation; (4) she suffered an adverse employment action; and

(5) the adverse action was imposed because of her disability.”

Zelasko v. NYC Dep’t of Educ., No. 20-CV-5316, 2021 WL 2635121, at

*2 (E.D.N.Y. June 25, 2021) (quoting Davis v. N.Y.C. Dep’t of

Educ., 804 F.3d 231, 235 (2d Cir. 2015) (citation omitted)).

“[W]hile a discrimination complaint need not allege facts

establishing each element of a prima facie case of discrimination”

to state a claim, “it must at a minimum assert nonconclusory

factual matter sufficient to ‘nudge [ ] [its] claims’ . . . ‘across

the line from conceivable to plausible’ to proceed.” Id.

(alteration in original) (quoting Vega, 801 F.3d at 84) (further

citation omitted).

Under both Title VII and the ADA, “individual defendants

with supervisory control over a plaintiff may not be held

personally liable under Title VII.” Tomka v. Seiler Corp., 66

F.3d 1295, 1313 (2d Cir. 1995) abrogated on other grounds by

Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); Postell v.

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Wells, No. 20-CV-3991, 2020 WL 5774912, at *2 (S.D.N.Y. Sept. 26,

2020) (“Individuals are not subject to liability under Title VII,

. . . or the ADA.”) (citation omitted)).

C. Analysis of Plaintiff’s Claims

Here, the Complaint fails to sufficiently allege

discrimination under Title VII and the ADA. Indeed, the

allegations in support of Plaintiff’s employment discrimination

claims are conclusory and fail to meet Rule 8’s requirements. (See

generally Compl.) Plaintiff has not alleged any facts suggesting

that his employer discharged him based on any protected

characteristic. See, e.g., Calvo v. Amalgamated Hous. Corp., No.

20-CV-10859, 2021 WL 516843, at *3 (S.D.N.Y. Feb. 11, 2021)

(“Plaintiff does not allege facts suggesting that his employer

took any adverse action against him based on any protected

characteristic.”). Moreover, although Plaintiff checked the boxes

in the form Complaint that he was terminated due to his race,

religion, and/or disability, he has not alleged his race, religion,

or the nature of his disability. (Compl. § III.D.) Further,

although Plaintiff alleges that he was asked to make drinks, which

“goes against [his] religious belie[fs],” there are no allegations

that Defendants terminated Plaintiff’s employment for those

religious beliefs. In the absence of any facts suggesting that

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Plaintiff’s termination was based on his race, religion, or

disability, he has not alleged a plausible claim under Title VII

or the ADA. See Lucas v. Apple Food Serv. of N.Y., LLC, No. 15-

CV-4007, 2015 WL 6507495, at *3 (E.D.N.Y. Oct. 27, 2015) (liberally

construing pro se pleadings and finding the “complaint fails to

plead any facts linking defendant’s conduct, i.e., the suspension

of plaintiff without pay for two (2) weeks and termination of her

employment, to plaintiff’s race, color, gender, religion or

pregnancy, or supporting a reasonable inference that defendant

discriminated against plaintiff because of those protected

characteristics.”) (collecting cases); Littlejohn v. City of N.Y.,

795 F.3d 297, 311 (2d Cir. 2015) (holding that to state a Title

VII claim, the plaintiff need only satisfy the “minimal burden of

showing facts suggesting an inference of discriminatory

motivation”).

Moreover, because neither Title VII nor the ADA provides

for liability against individual defendants, Plaintiff’s claims

against Peter and Archie for employment discrimination under Title

VII or the ADA are DISMISSED.2 Taylor v. Children’s Vill., No.

2 In certain circumstances, individuals may be subject to liability

as employers under the New York State Human Rights Law, N.Y. Exec.

Law § 296 (“NYSHRL”). See Matusick v. Erie County Water Auth.,

757 F.3d 31, 53 (2d Cir. 2014). However, claims under the NYSHRL

are analyzed under same standard as Title VII and ADA claims.

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20-CV-10997, 2021 WL 467128, at *5 (S.D.N.Y. Feb. 8, 2021)

(“[U]nder the federal employment anti-discrimination statutes,

individuals may not be held liable.”) (citations omitted).

For these reasons, Plaintiff’s Complaint fails to state

a plausible claim for relief and is DISMISSED WITHOUT PREJUDICE

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Taylor, 2021 WL

1581568, at *3 (sua sponte dismissing Title VII and ADA claims

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) where plaintiff did not

allege any facts suggesting that her religion or disability were

in any way related to her termination). As discussed below,

Plaintiff is granted leave to file an amended complaint. If

Plaintiff chooses to amend his complaint, “he must allege facts

showing or suggesting that Defendant[s] took adverse employment

action against him because of an impermissible factor.” Calvo,

2021 WL 516843, at *3 (emphasis in original).

Therefore, the Court’s determination that Plaintiff’s claims are

implausible under the federal statutes means that they also fail

under state law. See, e.g., Tolbert v. Smith, 790 F.3d 427, 439

(2d Cir. 2012) (using the same standard to analyze racial

discrimination claims under Title VII and NYSHRL); Cornetta v.

Town of Highlands, 434 F. Supp. 3d 171, 186 (S.D.N.Y. 2020)

(applying the same standard to evaluate discrimination claims

whether under ADA or NYSHRL).

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III. Plaintiff is Granted Leave to File an Amended Complaint

A pro se plaintiff should ordinarily be given “an

opportunity to amend a complaint to cure its defects, unless

amendment would be futile.” Kellier v. Billups, No. 21-CV-3921,

2021 WL 2435556, at *6 (S.D.N.Y. June 14, 2021) (citing Hill v.

Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011)). In an abundance

of caution, Plaintiff is GRANTED leave to file an Amended

Complaint. Plaintiff shall file an Amended Complaint, detailing

his employment discrimination claims, on or before August 23, 2021.

Any Amended Complaint must be captioned “Amended

Complaint” and bear the same docket number as this Order: 20-CV-

5832(JS)(AKT). Plaintiff is advised that an Amended Complaint

COMPLETELY replaces the original complaint in its entirety.

Therefore, all claims and allegations that Plaintiff wishes to

pursue MUST be included in the Amended Complaint. Should Plaintiff

prepare an Amended Complaint, he should carefully consider this

Order and amend his claims accordingly because it will be reviewed

for compliance with this Order and for sufficiency under Rule 8

and 28 U.S.C. § 1915. Plaintiff is WARNED that if he does not

file an Amended Complaint on or before August 23, 2021, judgment

shall enter and this case will be marked CLOSED.

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Finally, while Plaintiff may pursue his litigation in

any way that he chooses, the Court wishes to advise Plaintiff of

the Hofstra Pro Se Legal Clinic to obtain legal assistance in

amending his complaint. Although the Clinic is located at the

Central Islip Courthouse, it is not affiliated with the Court.

The Clinic may be reached at (631) 297-2575 or PSLAP@Hofstra.edu.

CONCLUSION

For the forgoing reasons, IT IS HEREBY ORDERED that:

(1) Plaintiff’s application to proceed in forma pauperis

(ECF No. 14) is GRANTED;

(2) The Clerk of the Court is respectfully directed to re-

open and restore this case to the Court’s docket;

(3) Upon review of the pleadings, the Complaint is sua sponte

DISMISSED without prejudice for failure to state a claim for relief

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Rule 8;

(4) Plaintiff is GRANTED leave to file an Amended Complaint

consistent with this Order on or before August 23, 2021. Plaintiff

is WARNED that if he fails to file an Amended Complaint on or

before August 23, 2021, judgment will enter and this case will be

dismissed.

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(5) Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies

that any appeal from this Order would not be taken in good faith

and therefore in forma pauperis status is DENIED for the purpose

of any appeal. Coppedge v. United States, 369 U.S. 438, 444-45

(1962).

The Clerk of the Court is respectfully directed to mail

a copy of this Order to the pro se Plaintiff.

SO ORDERED.

_ /s/ JOANNA SEYBERT

Joanna Seybert, U.S.D.J.

Dated: July 14 , 2021

Central Islip, New York

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