Wallace v. Crab House, Inc.

USDC SDNY

DOCUMENT

UNITED STATES DISTRICT COURT ELECTRONICALLY FILED

SOUTHERN DISTRICT OF NEW YORK DOC #:

monn nnn nnn nnn aren nnn mannan KK DATE FILED:_05/12/2022

NIQUAN WALLACE, :

Plaintiff, :

: 21-cv-5757 (LJL)

-V- :

: OPINION AND ORDER

CRAB HOUSE, INC. et al, :

Defendants. :

nen KX

LEWIS J. LIMAN, United States District Judge:

Defendant Crab House, Inc. (“Crab House”) along with defendants San-Kit Cheng,

Mengxing Wang, Songqiang Wang, and Haifan Wang (collectively, “Individual Defendants,”

and with Crab House, “Defendants”) move, pursuant to Federal Rule of Civil Procedure

12(b)(6), to dismiss the complaint filed against them by plaintiff Niquan Wallace (“Plaintiff or

“Wallace”). Dkt. No. 19.

For the following reasons, the motion to dismiss is granted.

BACKGROUND

For purposes of this motion only, the Court accepts the well-pleaded allegations of the

complaint as true.

Defendant Crab House is the successor in interest to the owner of a restaurant located in

Queens, New York known as the Lobster House Seafood Buffet Restaurant (“Lobster House’’).

Dkt. No. 1 §§ 10, 22.1 The Individual Defendants are alleged to be owners, operators,

' At the relevant time, Lobster House was owned by Red Panda Asian Bistro Inc. Jd. §§] 10, 22.

Plaintiff bases his claim for successor liability on the allegations that Crab House had notice of

the charge and pending lawsuit prior to acquiring Lobster House; that Lobster House is no longer

able to provide relief; and that there is substantial continuity in business operations in that,

supervisors, and/or managers of Lobster House. Id. ¶¶ 13–21. All Lobster House employees

transferred over to Crab House in or around April 2021 when Lobster House closed. Id. ¶ 23.

Wallace was employed at Lobster House from on or about June 2, 2019 until his

employment was terminated on or about December 21, 2019 on allegations that he was stealing

tips from other servers and illicitly obtaining their payroll information from the restaurant’s

computer. Id. ¶¶ 6, 59. The complaint does not allege the job for which Wallace was initially

hired, but it describes Wallace’s role in various ways including “runner,” id. ¶ 28, “waiter,” id.

¶ 29, and “server,” id. ¶ 30. The complaint alleges that Wallace held his job and performed his

duties with skill, dedication, and dignity. Id. ¶ 8.

Wallace, who is an African American man, alleges that he and two employees of

Hispanic descent were treated differently from other employees who were white or of Asian

descent. Id. ¶¶ 7, 35. Instead of being given his own tables to serve, Wallace was assigned to

“run” food to the tables of other waiters and to clean those tables, depriving him of the time to

wait his own tables and the opportunity to earn tips. Id. ¶¶ 27–28. No other waiter was required

to run other waiters’ food. Id. ¶ 29. He also was the only server assigned to take out the

garbage. Id. ¶ 30. Wallace was also required to sweep and mop the floor of the restaurant every

day and to play “bodyguard,” running after customers who failed to pay the full amount of their

bills. Id. ¶¶ 31–32.

Wallace alleges that beginning in July 2019, he was accused of taking tips from tables

and stealing money from the “money bills.” Id. ¶ 39. He alleges he was singled out as uniquely

suspicious because he is a Black man and that the Individual Defendants would hover over him

despite the change in location, Crab House uses the same and substantially the same supervisory

personnel and the same job exists under the same conditions. Id. ¶ 26; see also id. ¶¶ 22–25.

and bump and jostle him in an effort to intimidate him when he was collecting money from

customers. Id. ¶¶ 33–34. He was also accused of not being honest and trustworthy enough to

ring up the cash register while other individuals who were white or of Asian descent were not

subject to the same accusation and unfounded suspicion. Id. ¶¶ 35, 43.

In or about October 2019, Defendants created a raffle system for assigning sections of

tables in the restaurants to servers. Id. ¶ 40. Defendants regularly had Wallace select a section

last so that he would always receive the worst section, typically the upstairs section of the

restaurant. Id. ¶ 41. Defendants would then fill the first floor of the restaurant with customers

before seating customers upstairs such that Wallace would spend a significant portion of his shift

with few to no customers, further reducing his earnings capacity. Id. In addition, after October

2019, Wallace had his hours reduced from five days a week to four days a week and was no

longer given Friday shifts. Id. ¶ 42.

The complaint alleges that two Hispanic employees were also treated differently from

employees who were white or of Asian descent. One Hispanic individual—identified only by his

first name, Ruben—was hired to work as a server and was a successful trainee but was deemed

not trustworthy and not allowed to use the cash register because he was Spanish. Id. ¶¶ 36–37.

Instead, Ruben was made to work as a busser making no tips and doing heavy duty work. Id.

¶ 38. Ruben became discouraged and quit after three months. Id. Defendants also hired Alfonso

Gonzalez (“Gonzalez”), who is Spanish, as Wallace’s replacement. Id. ¶ 44.2 Instead of

working as a server, Gonzalez was required to do busboy duties. Id. ¶ 45. Like Wallace, he also

2 The complaint alleges that Gonzalez was hired “as soon as Plaintiff filed the lawsuit.” Id. ¶ 44.

It does not explain how, if Gonzalez was hired only after the complaint was filed, the complaint

itself could make reference to that fact. In any event, when Gonzalez was hired is immaterial to

the Court’s decision.

was required to work upstairs as a result of the raffle system and had to wait 2–3 hours helping

other “family member servers” until he could have customers sent upstairs to his tables. Id. ¶ 47.

Like Wallace, Gonzalez was also not permitted to go into the cash register. Id. ¶ 43. Gonzalez

worked only part-time, and the complaint asserts that ultimately his employment was terminated

as a result of his race. Id. ¶ 48.

The complaint also alleges that two white employees received preferential treatment. It

alleges that a white woman, Kimberly Ann Gomez (“Gomez”), received preferential treatment

because of her race. Id. ¶ 50. She was considered trustworthy and was permitted to go into the

cash register. Id. ¶ 51. She also received more days to work and had her sick-day requests

readily approved and honored while Wallace was not given such privileges and would lose a full

day’s work and pay if he arrived at work even a little late. Id. ¶¶ 52–53. Gomez’s requests for a

schedule shift were also readily approved while Wallace’s similar requests were denied. Id. ¶¶

54–55. Gomez was also never ordered to sweep, mop, work the sauce bar, or lift a heavy chair.

Id. ¶ 56. In addition, another employee who was white, Kasey Karisaridis (“Karisaridis”), never

had to sweep or mop during her employment and only had to pick up glasses or plates. Id. ¶¶

57–58.

On or about December 21, 2019, Wallace’s employment was terminated by defendant

San-Kit Cheng who told him: “I am sorry. You are terminated as I was told that you are stealing

other servers[’] tips and stealing other employees[’] payroll information from the computer. I

saw the camera and confirmed that.” Id. ¶ 59. Defendant Haifan Wang had complained to San-

Kit Cheng that Wallace had taken a picture of the register. Id. ¶ 60. Wallace responded that he

had never taken tips from other employees and that he was taking photos of his personal pay stub

information on the work computer and not of his co-workers’ information.3 Id. ¶ 63. On or

about December 23, 2019, Wallace returned to the restaurant to receive his final paycheck. Id.

¶ 64.

PROCEDURAL HISTORY

Plaintiff initiated this case by complaint filed on July 4, 2021. Dkt. No. 1. The complaint

contains five counts: Count I is for race discrimination in violation of 42 U.S.C. § 1981, Dkt. No.

1 ¶¶ 65–69; Count II is for a hostile work environment in violation of 42 U.S.C. § 1981, Dkt. No.

1 ¶¶ 70–73; Count III is for race discrimination in violation of New York State Executive Law

§ 296, Dkt. No. 1 ¶¶ 74–75; Count IV is for aiding and abetting discrimination in violation of the

New York State Human Rights Law, id. ¶¶ 76–80; and Count V is for race discrimination in

violation of New York City Human Rights Law § 8-107, id. ¶¶ 81–82. Plaintiff seeks a

declaratory judgment, injunctive relief, compensatory damages, backpay, and reinstatement. Id.

at 13–14. On August 6, 2021, Defendants answered. Dkt. No. 14.

On January 4, 2022, Defendants filed their motion to dismiss for failure to state a claim

for relief along with a memorandum of law in support. Dkt. Nos. 19–20. Plaintiff filed his

response to the motion to dismiss on January 18, 2022. Dkt. No. 23. No reply memorandum

was filed.

LEGAL STANDARD

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for

failure to state a claim upon which relief can be granted, a complaint must include “sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

3 The complaint notes that, in the last month of Wallace’s employment, tips were no longer

pooled, and each individual waiter would receive his or her tips from the tables they waited. Id.

¶ 62.

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570

(2007)). A complaint must offer more than “labels and conclusions,” “a formulaic recitation of

the elements of a cause of action,” or “naked assertion[s]” devoid of “further factual

enhancement” in order to survive dismissal. Twombly, 550 U.S. at 555, 557. The ultimate

question is whether “[a] claim has facial plausibility, [i.e.,] the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the

misconduct alleged.” Iqbal, 556 U.S. at 678. “Determining whether a complaint states a

plausible claim for relief will . . . be a context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.” Id. at 679. Put another way, the plausibility

requirement “calls for enough fact to raise a reasonable expectation that discovery will reveal

evidence [supporting the claim].” Twombly, 550 U.S. at 556; see also Matrixx Initiatives, Inc. v.

Siracusano, 563 U.S. 27, 46 (2011).

DISCUSSION

Defendants argue that Plaintiff has not pleaded sufficient facts to support any of his

claims. They argue that Count I must be dismissed because Plaintiff does not allege that he

performed his work satisfactorily or that he suffered an adverse employment action under

circumstances giving rise to an inference of discrimination. Dkt. No. 20 at 3–4. On Count II,

Defendants argue that Plaintiff has not alleged facts to support that he was subject to a hostile

work environment, that the environment unreasonably interfered with his work performance, or

that the environment was hostile as a result of his race. Id. at 5–7. Defendants argue that

Plaintiff’s state and city claims fail for similar reasons. Id. at 7–8. The Court examines

Plaintiff’s adverse employment discrimination, hostile work environment, and state and city

claims in turn.

I. Employment Discrimination Under 42 U.S.C. § 1981

Employment discrimination claims under Section 1981 are subject to the same standards

as those under Title VII. See Bermudez v. City of New York, 783 F. Supp. 2d 560, 576 (S.D.N.Y.

2011) (collecting cases). In the absence of “direct evidence” that an adverse employment

decision was motivated at least in part by the plaintiff’s race, the plaintiff can plead a prima facie

case of discrimination by alleging facts that would plausibly support “that [1] the plaintiff is a

member of a protected class, [2] was qualified, [3] suffered an adverse employment action, and

[4] [there is] at least minimal support for the proposition that the employer was motivated by

discriminatory intent.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015). At the

motion to dismiss stage, a plaintiff “need only give plausible support to a minimal inference of

discriminatory motivation.” Id.; see also id. at 310 (noting the relationship between the

McDonnell Douglas burden-shifting framework and the pleading standard in Iqbal and

concluding that “[t]o the same extent that the McDonnell Douglas [framework] . . . reduces the

facts a plaintiff would need to show to defeat a motion for summary judgment prior to the

defendant’s furnishing of a non-discriminatory motivation, that presumption also reduces the

facts needed to be pleaded under Iqbal” (emphasis in original)). “An inference of discrimination

can arise from circumstances including, but not limited to, ‘the employer’s criticism of the

plaintiff’s performance in ethnically degrading terms; or its invidious comments about others in

the employee’s protected group; or the more favorable treatment of employees not in the

protected group; or the sequence of events leading to the plaintiff’s discharge.’” Id. at 312

(quoting Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009)).

“Once a plaintiff has established a prima facie case, a presumption arises that more likely

than not the adverse conduct was based on the consideration of impermissible factors. The

burden then shifts to the employer to ‘articulate some legitimate, nondiscriminatory reason’ for

the disparate treatment.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 83 (2d Cir.

2015) (citation omitted) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802

(1973)). “If the employer articulates such a reason for its actions, the burden shifts back to the

plaintiff to prove that the employer’s reason ‘was in fact pretext’ for discrimination.” Id.

(quoting McDonnell Douglas, 411 U.S. at 804).

Defendants do not dispute that Plaintiff was a member of a protected class and that he

suffered the adverse employment action of being terminated.4 Dkt. No. 20 at 2–3. They argue,

however, that the pleaded facts do not support either that he performed his duties satisfactorily or

that there are facts giving rise to an inference of discrimination on the basis of race. Id. at 2–4.

Plaintiff has sufficiently pleaded that he was qualified for the position. Courts have

described the second element of the prima facie case under the McDonnell Douglas framework

as requiring a showing that the plaintiff was either “qualified for the position” or “performing his

duties satisfactorily.” Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001).

This “mere variation in terminology between ‘qualified for the position’ and ‘performing . . .

satisfactorily,’” however, does not change that “all that is required is that the plaintiff establish

basic eligibility for the position at issue, and not the greater showing that he satisfies the

employer.” Id. at 91–92. The Second Circuit has “repeatedly held” that “the qualification

4 Plaintiff argues that he suffered from other adverse employment actions in addition to

termination; for example, he contends that the various tasks he was required to do at the

restaurant and his assignment to the worst section of the restaurant amount to adverse

employment actions. Dkt. No. 23 at 7-8. Defendants have not responded to this contention. “A

plaintiff sustains an adverse employment action if he or she endures a materially adverse change

in the terms and conditions of employment.” Vega, 801 F.3d at 85 (quoting Galabya v. N.Y.C.

Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)). Even if the Court were to assume (without

deciding) that the conduct of which Plaintiff complains rises to the level of an adverse

employment action, Plaintiff would still fail to state a claim because he does not plead a minimal

inference of discrimination. See infra.

necessary to shift the burden to defendant for an explanation of the adverse job action is

minimal; plaintiff must show only that he ‘possess the basic skills necessary for performance of

[the] job.’” Id. at 92 (alteration in original) (quoting Owens v. N.Y.C. Housing Auth., 934 F.2d

405, 409 (2d Cir. 1991)). In addition, “especially where discharge is at issue and the employer

has already hired the employee, the inference of minimal qualification is not difficult to draw.”

Id. Here, Plaintiff has alleged that he performed his duties with skill, dedication, and dignity and

that he performed a variety of duties at the restaurant, including waiting tables, during the over

six months that he worked at the restaurant. Given these facts, Plaintiff has sufficiently pleaded

that he possessed the basic skills necessary for the position and raised the inference of minimal

qualification.

The complaint, however, does not plead the minimal inference of discrimination as part

of the prima facie case. Plaintiff relies on the allegation that others who were white or of Asian

descent received preferential treatment. But he does not allege that those others were similarly

situated. “An employee is similarly situated to co-employees if they were (1) subject to the same

performance evaluation and discipline standards and (2) engaged in comparable conduct.”

Blaise v. Verizon New York Inc., 804 F. App’x 68, 70 (2d Cir. 2020) (summary order) (quoting

Ruiz v. County of Rockland, 609 F.3d 486, 493 (2d Cir. 2010)). “[I]t is insufficient for a plaintiff

to make naked assertions of disparate treatment without factual allegations indicating those

employees treated differently were similarly situated.” Colon v. City of New York, 2021 WL

4943552, at *12 (S.D.N.Y. Jan. 15, 2021) (quoting Sosa v. N.Y.C. Dep’t of Educ., 368 F. Supp.

3d 489, 514 (E.D.N.Y. 2019)), report and recommendation adopted, 2021 WL 4427169

(S.D.N.Y. Sept. 26, 2021).

Plaintiff’s barebones pleading does not satisfy this standard. Plaintiff identifies two

employees who he claims received preferential treatment to the treatment he received—Gomez

and Karisaridis. Dkt. No. 1 ¶¶ 49–58. But Plaintiff does not identify anything about either

employee other than that each was white and “worked with” Plaintiff. Id. ¶¶ 49, 57. In

particular, Plaintiff does not plainly allege the job he was hired to perform—whether it was to be

a runner or a waiter/server5—or the jobs that either of the alleged comparators were hired to

perform. Thus, although the complaint alleges that he was required to run food from the kitchen

to the tables that others served and was required to clean the tables and mop the restaurant

whereas others had their own tables to wait, the complaint’s allegations make it as or more

plausible that he had different job responsibilities because he was hired to perform different job

responsibilities. That inference is made all the more plausible by the complaint’s allegations that

the person who was Plaintiff’s replacement was asked to work as a busboy. It thus seems likely

that Plaintiff was asked to bus tables because that is the job for which he was hired and that the

others were not asked to bus tables because they—unlike Plaintiff—were not hired for a job that

required the busing of tables.

Moreover, to the extent that the complaint could be read to suggest that Plaintiff’s

termination was discriminatory and was on the basis of his race rather than his conduct, he does

not allege that there were any other employees who engaged in comparable conduct whose

employment was not terminated. Count I thus must be dismissed. See Moore v. City of New

York, 2017 WL 35450, at *12 (S.D.N.Y. Jan. 3, 2017) (“Beyond merely identifying himself as an

5 Plaintiff’s opposition to the motion argues that Defendants hired Plaintiff as a server. Dkt. No.

23 (citing Dkt. No. 1 ¶ 8). But this allegation is not included in paragraph 8 of the complaint or

anywhere else in the complaint, and “it is axiomatic that the [c]omplaint cannot be amended by

the briefs in opposition to a motion to dismiss.” O’Brien v. Nat’l Prop. Analysts Partners, 719 F.

Supp. 222, 229 (S.D.N.Y. 1989).

African American male and noting that a number of [the] [d]efendants involved in the alleged

adverse actions suffered by [the plaintiff] are ‘white’ and/or ‘female,’ [the plaintiff] proffers no

other facts to support his claim that [the] [d]efendants took action against him because of his

membership in a protected class.”), report and recommendation adopted, 2017 WL 1064714

(S.D.N.Y. Mar. 20, 2017).

II. Hostile Work Environment Under 42 U.S.C. § 1981

Count II alleges that Plaintiff was subject to a hostile work environment in violation of 42

U.S.C. § 1981. See Littlejohn, 795 F.3d at 320 (“Section 1981 has been interpreted to ‘provide a

cause of action for race-based employment discrimination based on a hostile work

environment.’” (alteration adopted) (quoting Whidbee v. Garzarelli Food Specialties, Inc., 223

F.3d 62, 69 (2d Cir. 2000))). To plead a hostile work environment under federal law, a plaintiff

must plead that a defendant’s conduct: (1) was objectively severe or pervasive in that it created

an environment that a reasonable person would find hostile or abusive; (2) created an

environment that the plaintiff subjectively perceived as hostile or abusive; and (3) occurred

because of the plaintiff’s protected characteristic. See Patane v. Clark, 508 F.3d 106, 113 (2d

Cir. 2007); Littlejohn, 795 F.3d at 320–21; Sherman v. Fivesky, LLC, 2020 WL 2136227, at *5

(S.D.N.Y. May 5, 2020). To plead conduct that is pervasive, a plaintiff must allege incidents

that are “more than episodic; they must be sufficiently continuous and concerted.” Littlejohn,

795 F.3d at 32; see also James v. Borough of Manhattan Cmty. Coll., 2021 WL 5567848, at *8

(S.D.N.Y. Nov. 29, 2021). “Isolated incidents usually will not suffice to establish a hostile work

environment, although [the Second Circuit has] often noted that even a single episode of

harassment can establish a hostile work environment if the incident is sufficiently ‘severe.’”

Redd v. New York Div. of Parole, 678 F.3d 166, 175–76 (2d Cir. 2012). “In determining whether

a plaintiff suffered a hostile work environment, [courts] must consider the totality of the

circumstances, including ‘the frequency of the discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably

interferes with an employee’s work performance.’” Littlejohn, 795 F.3d at 321 (quoting Harris

v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). Conduct that is offensive but that is directed at and

affects members of protected classes and others equally is not actionable. See Menaker v.

Hofstra Univ., 935 F.3d 20, 38 n.88 (2d Cir. 2019) (“Put bluntly, the equal opportunity harasser

escapes the purview of Title VII liability.” (quoting Brown v. Henderson, 115 F. Supp. 2d 445,

450 (S.D.N.Y. 2000))).

Plaintiff does not allege facts sufficient to state a claim for a hostile work environment.

He alleges that he was forced to run food to the table of other waiters, to clean tables, to take out

the garbage, to sweep and mop the floor, and to play “bodyguard.” But that he was required to

do these tasks does not amount to conduct by Defendants that a reasonable person would find

hostile or abusive; the functions Plaintiff was asked to perform are functions that are typically

performed in a restaurant. Plaintiff also alleges that one of the defendants frequently accused

him of stealing money and that he received undesirable table assignments. But he does not plead

facts to suggest that this conduct occurred because of his race. There are, for example, no

allegations of racial slurs or comments directed at him and, as noted, there also are no allegations

that similarly situated individuals were treated differently. In the absence of any allegations that

would satisfy the three prongs of a hostile work environment claim, Count II must be dismissed.

III. New York State and New York City Claims

Because the federal claims are dismissed, the Court declines to exercise supplemental

jurisdiction over Plaintiff’s remaining claims under state and local law. See 28 U.S.C.

§ 1367(c)(3); Klein & Co. Futures v. Bd. of Trade of City of N.Y., 464 F.3d 255, 262 (2d Cir.

2006) (“It is well settled that where . . . the federal claims are eliminated in the early stages of

litigation, courts should generally decline to exercise pendent jurisdiction over remaining state

law claims.” (collecting cases)).

CONCLUSION

The motion to dismiss is GRANTED. Plaintiff has not had an opportunity to replead, and

discovery has been ongoing. Accordingly, the dismissal is without prejudice to the filing of an

amended complaint within thirty (30) days of the date of this Order. If no amended complaint is

filed, the case will be closed. The joint pretrial order deadline, final pretrial conference, and trial

date are ADJOURNED sine die.

The Clerk of Court is respectfully directed to close Dkt. No. 19.

SO ORDERED.

gee g

Dated: May 12, 2022 tl Ma

New York, New York LEWIS J. LIMAN

United States District Judge

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