Barker v. Aramark Uniform & Careers Apparel LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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RONALD BARKER,

Plaintiff,

MEMORANDUM & ORDER

- against - 19-CV-2710 (PKC) (SMG)

ARAMARK UNIFORM & CAREER

APPAREL, LLC,

Defendant.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Ronald Barker, proceeding pro se, bring this action against his former employer,

Defendant Aramark Uniform & Career Apparel, LLC (“Aramark”), alleging violations of 42

U.S.C. §§ 2000e et seq. (“Title VII”). Before the Court is Defendant’s motion to dismiss pursuant

to Federal Rule of Civil Procedure 12(b)(6). For the reasons discussed below, Defendant’s motion

is granted in part and denied in part.

BACKGROUND1

I. Relevant Facts2

Plaintiff, a Black male, began working for Defendant, an industrial laundry and uniform

rental business, in 2015 as a “route salesman/truck driver.” (Dkt. 1, at 123, 71.)4 In the summer

1 The Court assumes the parties’ familiarity with the underlying allegations of this case

and, therefore, will only recite the facts relevant to resolve the instant motion.

2 For purposes of this motion, the Court accepts as true all non-conclusory allegations in

the Complaint. Rosenblum v. Thomson Reuters (Markets) LLC, 984 F. Supp. 2d 141, 145

(S.D.N.Y. 2013).

3 Page numbers refer to the pagination generated by the court’s CM/ECF docketing system,

and not the document’s internal pagination.

4 Plaintiff’s complaint in this action consists of the Court’s standard pro se complaint form

and 228 pages of attached exhibits, which include, inter alia, Plaintiff’s original NYSDHR

of 2016, Defendant restructured its drivers’ routes. (Id. at 69.) According to Plaintiff, the purpose

of the restructuring was to “level the playing field” because white drivers were, at the time, being

paid more than Black drivers. (Id. at 14, 71.) The white drivers protested the restructuring and

filed an (ultimately unsuccessful) grievance with the Laundry, Distribution & Food Service Joint

Board, Workers United Union (the “Union”), which has a collective bargaining agreement

(“CBA”) with Defendant. (Id. at 14; see also id. at 45.)

One of the white drivers, Brian Calhoun, subsequently complained about the re-routing to

Dave Gambardella, an Aramark district manager who is also white. (Id.) In response to Calhoun’s

complaint, Gambardella “took it upon [him]self and took [thirteen] stops off [Plaintiff’s route],”

giving seven of them to Calhoun. (Id. at 14, 31-32, 45, 71-72.)5 When Plaintiff spoke with

Gambardella about the stop-reassignment issue, Gambardella stated, “this is how we look after our

own,” and then employed “stereotypical ‘Black phrases,’” such as “you know what I’m saying

homie?” (Id. at 14, 71.) According to Plaintiff, “[t]hey did not touch [any]. . . white driver’s route.

Only mine.” (Id. at 14.)

complaint and the NYSDHR’s Final Investigation Report and Basis of Determination. Plaintiff

did not include a separate statement of facts with his complaint, but instead wrote “see attached

files from New York State Division of Human Rights.” (See Dkt. 1, at 5.) Accordingly, in

describing the allegations in the Complaint, the Court draws from Plaintiff’s NYSDHR complaint

and the NYSDHR’s Final Investigation Report. See Lynch v. City of New York, 952 F.3d 67, 79

(2d Cir. 2020) (“It is well established that a pleading is deemed to include any written instrument

that is attached to it as an exhibit or is incorporated in it by reference.” (citations and quotations

omitted)).

5 Plaintiff’s co-workers, Jermaine Wheeler and Darrien Miller, corroborate that

Gambardella “took stops from [Plaintiff] and gave them to other drivers.” (Dkt. 1, at 72.) On

unidentified dates, Wheeler also “overheard comments from . . . Gambardella mocking black

people by making comments like ‘My nigga, my nigga’,” and Miller overheard Gambardella “call

someone a monkey.” (Id.)

Plaintiff subsequently raised the issue of the stop reassignment with his assistant general

manager and general manager, but “they refused to do anything about it.” (Id. at 14.) He also

filed a grievance with the Union under the CBA based on the removal of the stops. (Id. at 21, 71-

72.) Ultimately, Gambardella did not give Plaintiff the stop assignments back, even though

Defendant’s policies require that “the company must compensate him for stops or give him

replacement stops if stops are taken away from him.” (Id. at 71.) According to Plaintiff, Defendant

neither compensated him for the stops taken nor gave him replacement stops. As a result of the

stop reassignment, Calhoun “was and still [is] the highest pa[id] driver there,” but Plaintiff’s wages

declined. (Id. at 21; see id. at 20 (“[Barker’s] wages had continued to decline after the

rerouting.”).) On August 10, 2017, Plaintiff quit working for Defendant, stating that he “had to

leave the company” because he “could not support [his] family with the money [he] was making.”

(Id. at 24; see also id. at 32, 69.)

II. Procedural History

On January 24, 2018, Plaintiff filed a charge of discrimination with the United States Equal

Employment Opportunity Commission (“EEOC”) and the New York State Division for Human

Rights (“NYSDHR”). (Id. at 6, 11.)

On July 3, 2018, the NYSDHR issued a final investigation report concluding that there was

“probable cause to support the allegations of the complaint.” (Id. at 73 (“Complainant’s allegations

of discrimination appear to support a continuing violation. . . . The Division interviewed two

witnesses and the complainant, the Division learned that the manager Dave Gambardella

frequently made racially-charged derogatory comments.”).) On February 14, 2019, the EEOC

issued Plaintiff a Right to Sue letter. (Id. at 6.)

On May 8, 2019, Plaintiff filed the operative complaint in this action alleging violations of

42 U.S.C. § 1981, 42 U.S.C. §§ 2000e et seq. (“Title VII”), New York State Executive Law §§ 296

et seq. (“NYSHRL”), and the New York City Administrative Code §§ 8-101 et seq. and § 8-

107(15) (“NYCHRL”).

On July 26, 2019, Defendant sought, inter alia, leave to file a motion to dismiss under Rule

12(b)(6) on the grounds that Plaintiff’s claims were “barred by a release of claims” contained in

an April 2019 settlement agreement (the “Settlement Agreement”) between the parties. (Dkt. 10,

at 1.) The Court directed the parties to conduct discovery and then brief, as a summary judgment

motion, the issue of whether Plaintiff was estopped from asserting his claims based on the

Settlement Agreement. (11/06/19 Order.) On September 22, 2020, the Court (i) granted summary

judgment to Defendant on Plaintiff’s claims “under 42 U.S.C. § 1981, . . . the NYCHRL, [and the]

NYSHRL” in their entirety as barred by the Settlement Agreement; (ii) granted summary judgment

to Defendant on Plaintiff’s claims under Title VII for compensatory damages as barred by the

Settlement Agreement; and (iii) denied summary judgment to Defendant “as to Plaintiff’s Title

VII claim for punitive damages.” (Dkt. 39, at 12-13, 19-20.) The Court also permitted limited

discovery and additional briefing “regarding any reservation of Plaintiff’s right to bring a claim

for punitive damages under Title VII in federal court.” (Dkt. 55, at 7-8.)

On December 7, 2020, Defendant renewed its motion for summary judgment as to

Plaintiff’s Title VII claim for punitive damages “in light of . . . additional evidence” concerning

the parties’ “negotiations over the Settlement Agreement.” (Id.) On September 30, 2021, the

Court denied Defendant’s renewed motion for summary judgment and concluded that “a genuine

issue of material fact remains concerning whether Plaintiff reserved the right [under the Settlement

Agreement] to sue under Title VII seeking punitive damages as a remedy.” (Id. at 28.)

Because there has yet to be a motion challenging the sufficiency of Plaintiff’s Title VII

claims, as alleged in the Complaint, Defendant filed the instant motion to dismiss, which was fully

briefed as of January 14, 2021. (Dkt. 60.)

LEGAL STANDARDS

To survive a motion to dismiss pursuant to Rule 12(b)(6), “a complaint must contain

sufficient factual matter . . . to ‘state a claim to relief that is plausible on its face.’” Ashcroft v.

Iqbal, 556 U.S. 662 (2009) (quoting Bell Atlantic 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.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a

‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted

unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Determining whether a complaint states a

plausible claim for relief is “a context-specific task that requires the reviewing court to draw on its

judicial experience and common sense.” Id. at 679 (citation omitted). “In addressing the

sufficiency of a complaint, [the Court] accept[s] as true all factual allegations and draw[s] from

them all reasonable inferences; but [the Court is] not required to credit conclusory allegations or

legal conclusions couched as factual allegations.” Rothstein v. UBS AG, 708 F.3d 82, 94 (2d Cir.

2013).

“A document filed pro se is to be liberally construed, and a pro se complaint, however

inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by

lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation marks and citations

omitted). District courts must interpret pro se complaints “to raise the strongest claims that it

suggests.” Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (cleaned up).

DISCUSSION

I. Defendant’s Motion to Dismiss is Granted as to Plaintiff’s Employment

Discrimination Claim.

Under Title VII, “a plaintiff in New York must file a complaint with the EEOC within 300

days of a discriminatory act.” Richard v. New York City Dep’t of Educ., No. 16-CV-957, 2022

WL 4280561, at *12 (E.D.N.Y. Sept. 15, 2022). Conduct that occurred more than 300 days prior

to the filing of an EEOC charge is “properly dismissed . . . as untimely.” Patterson v. Cnty. of

Oneida, N.Y., 375 F.3d 206, 220 (2d Cir. 2004). One exception to this rule is the “continuing

violation exception,” which permits courts to consider claims that “the discriminatory acts were

part of a continuing policy and practice of prohibited discrimination, where one act of

discrimination in furtherance of the ongoing policy occurred within the limitations period.” Lugo

v. City of New York, 518 F. App’x 28, 29 (2d Cir. 2013). However, “ongoing harms flowing from

discrete events do not trigger the application of the continuing violation doctrine.” Corsini v. City

of New York, No. 20-CV-5459, 2021 WL 5999631, at *10 (E.D.N.Y. Dec. 20, 2021).

In this case, Plaintiff alleges that, in 2016, Gambardella took stops from Plaintiff’s route to

give them to a white co-worker and, as a result, Plaintiff’s wages declined. (Dkt. 1, at 20-21.)

Under Title VII, Gambardella’s reassignment of Plaintiff’s stops constituted a “discrete act” of

discrimination, triggering the 300-day period in which to file a charge with the EEOC. Roberts v.

Sage Corp., No. 20-CV-365, 2021 WL 3617670, at *4 (N.D.N.Y. Aug. 16, 2021) (holding “an

undesirable removal from a specific assignment or one-time transfer to a new unit . . . are all

discrete acts”). If Plaintiff was required to file an EEOC complaint regarding the 2016 event within

300 days, his claim would be time-barred because he did not file his EEOC claim until January

2018. The question then becomes whether the continuing violation exception applies to the

ongoing loss of wages as a result of Gambardella’s actions, in which case, his claim would be

timely as he stopped working for Defendant on August 10, 2017.

The Court finds that the continuing violation exception does not apply in this case as a

matter of law. The Second Circuit has held that a continuing violation “is not established merely

because an employee continues to feel the effects of a discriminatory act on the part of the

employer.” Lightfoot v. Union Carbide Corp., 110 F.3d 898, 907 (2d Cir. 1997); see also Roberts,

2021 WL 3617670 (N.D.N.Y. Aug. 16, 2021) (holding “an undesirable removal from a specific

assignment or one-time transfer to a new unit . . . are all discrete acts that are incapable of forming

the basis of a continuing violation for a discrimination or retaliation claim”).

Therefore, Plaintiff’s claim for punitive damages based on Title VII discrimination is time-

barred, and Defendant’s motion to dismiss is granted as to this claim.

II. Defendant’s Motion to Dismiss is Denied as to Plaintiff’s Constructive Discharge

Claim.

An employee is constructively discharged “when his employer, rather than discharging him

directly, intentionally creates a work atmosphere so intolerable that he is forced to quit

involuntarily.” Pryor v. Jaffe & Asher, LLP, 992 F. Supp. 2d 252, 261–62 (S.D.N.Y. 2014). The

inquiry is an objective one: “Did working conditions become so intolerable that a reasonable

person in the employee’s position would have felt compelled to resign?” Id. In order to state a

constructive discharge claim based on a pay reduction, Plaintiff must demonstrate “[a] reduction

in pay combined with the elimination of substantial employment benefits . . . , combined with

evidence of deliberate intent.” Hogan v. Metromail, 107 F. Supp. 2d 459, 469 (S.D.N.Y. 2000).

In this case, Plaintiff alleges that he was constructively discharged by Defendant because

he “could not support [his] family with the money [he] was making” as a result of the stop

reassignment. (Dkt. 1, at 24; see also id. at 32, 69.) Construing the allegations liberally, as the

Court must, Defendant’s motion to dismiss is denied. Here, Plaintiff not only alleges that his pay

was reduced because he was “left with less-paid stops,” but that he was also denied the benefit of

commissions from “loss-and-ruin pay.” (Id. at 71 (“Complainant stated that employees get 10%

[loss-and-ruin pay], which is money collected from damages charges and given to employees in

addition to their base pay.”).) Moreover, Plaintiff has more than met his “minimal burden of

showing facts suggesting an inference of discriminatory motivation” in reassigning his route stops.

Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). Specifically, Plaintiff alleges

that in explaining why he reassigned Plaintiff’s stops, Gambardella stated, “this is how we look

after our own,” and then employed “stereotypical ‘Black phrases,’” such as “you know what I’m

saying homie?” (Dkt. 1, at 14, 71.) Words like those used by Gambardella “may be examples of

‘dog-whistle racism,’ and ‘Title VII can hear racism sung in the whistle register.’” Brockman v.

NAES Corp., No. 3:19-CV-00006, 2021 WL 863471, at *4 (D. Conn. Mar. 8, 2021) (quoting Lloyd

v. Holder, 2013 WL 6667531, at *9 (S.D.N.Y. 2013)); see also Abrasam v. William Paterson Coll.

of N.J., 260 F.3d 265, 278 (3d Cir. 2001) (“even the use of ‘code words’ such as ‘all of you’ and

‘one of them’ could be sufficient evidence from which a jury could find an intent to discriminate”).

Therefore, the Court finds that Plaintiff has stated a constructive discharge claim under Title VII.6

Defendant’s motion to dismiss is denied.7

6 Unlike Plaintiff’s employment discrimination claim, this claim is not time-barred, since

the adverse action occurred when Plaintiff stopped working for Defendant in August 2017.

7 The Court rejects Defendant’s argument that the fact Plaintiff continued to work for

nearly a year after the stop reassignment “is sufficient to undermine a claim that working

conditions were intolerable.” (Dkt. 61, at 8.) As Plaintiff has alleged, “he stayed at his job for a

year because he was led to believe his grievance would be addressed but it never was, and he had

to find another job.” (Dkt. 1, at 71.) Had he not attempted the grievance process, Defendant would

instead be arguing that his claim should be dismissed for “fail[ure] to explore alternative avenues

offered by [his] employer before concluding that resignation is the only option.” Livingston v.

City of New York, 563 F. Supp. 3d 201, 235 (S.D.N.Y. 2021).

III. Defendant’s Motion to Dismiss is Denied as to Plaintiff’s Request for Punitive

Damages.

Defendant also moves to dismiss Plaintiff’s prayer for punitive damages. This portion of

Defendant’s motion is denied as premature. See, e.g., Belyea v. City of Glen Cove, No. 20-CV-

5675, 2022 WL 3586559, at *30 (E.D.N.Y. Aug. 22, 2022) (“Because punitive damages are a form

of damages, and not an independent cause of action, a motion to dismiss a prayer for relief in the

form of punitive damages is procedurally premature.”) (collecting cases). Therefore, the Court

denies Defendant’s motion with respect to Plaintiff’s punitive damages claim.

CONCLUSION

For the reasons explained above, Defendant’s motion to dismiss is granted in part and

denied in part. The Court grants Defendant’s motion to dismiss as to Plaintiff’s Title VII

employment discrimination claim but denies Defendant’s motion as to Plaintiff’s Title VII

constructive discharge claim and claim for punitive damages.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: September 30, 2022

Brooklyn, New York