Akhtab v BCBG Max Azria Group Inc.
2012 NY Slip Op 31041(U)
April 16, 2012
Sup Ct, NY County
Docket Number: 106770/11
Judge: Joan M. Kenney
Republished from New York State Unified Court
System's E-Courts Service.
Search E-Courts (http://www.nycourts.gov/ecourts) for
any additional information on this case.
This opinion is uncorrected and not selected for official
ON 411 912012
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
- - _- ----.-Index Number : 106770/2011
BCEG MAX AZRIA GROUP
SEQUENCE NUMBER : 001
The following papers, numbemd Ito
Notke of Motlon#&r t Show Cause
were h a d on thls motion tM&&
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK: PART 8
- - - - - - - - - - - --X
Index No.: 106770/11
-againstBCBG MAX A Z R I A GROUP INC., D E S I R E E
MOHIMI, LINDA MORA, TRACY KIM,
MELISSA W G I N , MATT DONAHUE, SARA
DERR, CARLA MAIICIAS,
_ - _ - _ - _ _ - - _ - - _ - - - - -- - - - - - - - - - - - - - X
--JOAN M. KENNEY, J. :
complaint w i t h prejudice.
FACTTJAL B A C K G R O W
In her cornplaint, plaintiff a l l e g e s that she was subject to
employment discrimination based on h e r race and/or national origin,
and asserts nine causes of action: (1) violation of Title VI1 of
.the C i v i l Rights A c t of 1964, asserted a8 against defendant BCBG
Max Azria Group, Inc. (BCBG); ( 2 ) violation of N e w York Executive
a s s e r t e d as against defendant Desiree Mohimi (Mohimi);
( 3 ) violation of New York Executive Law 5 2 9 6 , asserted as against
defendant Linda Mora (Mora) ( 4 ) violation of New York Executive
Law 5 296, asserted as against d e f e n d a n t Tracy Kim
(Kim); ( 5 )
violation of New York Executive Law 5 2 9 6 , a s s e r t e d a s a g a i n s t
defendant Melissa Mangin
(Mangin); (6) violation of New York
296, asserted as a g a i n s t defendant Matt Donahue
(Donahue); ( 7 ) violation of New York Executive Law
as against defendant Sara Derr (Derr); (8) violation of New York
Executive Law 5
asserted as against defendant Carla Macias
(Macias) s/h/a Marcias; and (9) violation of t h e New York City
Human Rights L a w , N e w York City Administrative Code of the City
New York 8 - 1 0 7
a s s e r t e d as against all defendants.
Motion, Ex. A.
On March 10, 2010, plaintiff filed charges with t h e United
States Equal Employment Opportunity Commission (EEOC), alleging
wrongful termination, retaliation, and denial of employment.
Motion, Ex. C.
In July 2010, plaintiff received a right-to-sue
l e t t e r from the EEOC, and the instant action was received by t h e
clerk of this court on June 10, 2011, almost eight months later.
The action was removed to the f e d e r a l court on July 5 , 2011,
and the federal court dismissed plaintiff’s cause of action based
on a violation of Title VI1 of the Civil Rights Act of 1964, with
prejudice, as being untimely, since any claim based
violation must be filed within 90 days after receiving the right-
to-sue l e t t e r .
Having dismissed the federal claim, the
federal court determined
that it lacked
adjudicate the state law claims, which the f e d e r a l court remanded
to this court on October 13, 2011.
Plaintiff was employed by BCBG as a full-time sales associate
from June 30, 2006 u n t i l h e r termination on April 20,
According to the complaint, plaintiff alleges that, beginning on
1, 2 0 0 9 ,
termination; however, t h e complaint fails to allege any incident
occurring based on h e r race, national origin, or as t h e r e s u l t of
Motion, Ex. A .
The complaint, which consists of
stream-of-consciousnessstatements, recites personal issues that
plaintiff had with several of the individual defendants, b u t fails
to allege a single fact or incident regarding h e r race and/or
In addition, plaintiff’s o n l y
regarding retaliation is a claim t h a t she was retaliated against
for filing an administrative charge with EEOC in 2008. I d .
that the complaint must be dismissed
because plaintiff does n o t identify h e r national origin, does not
identify t h e national origin of any of the individual defendants,
nor p l e a d s any facts to indicate that h e r termination was motivated
by h e r national origin.
F u r t h e r , plaintiff fails to allege that
any of the individual defendants had any involvement with t h e
decision to terminate her employment.
In sum, defendants argue that the complaint is bereft of any
allegation that plaintiff’s termination was motivated by h e r being
a member of a protected class.
In opposition to the instant motion, plaintiff has only
submitted an unsworn
affidavit, which consists of conclusory
In addition, plaintiff has attached a looseleaf
binder, consisting of 2 6 tabbed documents, plus sub-tabs, which
includes communications from her former counsel, EEOC submissions,
unsworn statements of third parties, and various documents that are
not responsive to defendants’ motion.
In r e p l y , and in support of their request that t h e complaint
be dismissed with prejudice, defendants state that this is the
third employment discrimination case that plaintiff has filed
The first discrimination claim asserted a3 against BCBG in
2008 was dismissed from t h e federal court f o r plaintiff’s and her
co-plaintiffs’ extreme conduct that warranted dismissal.
Ex. E. Eight months a f t e r plaintiff’s initial case was dismissed,
she sought to have it reinstated, but her motion to reinstate her
claims w a s denied. Reply, Ex. F. Plaintiff is currently appealing
Reply, Ex. G.
The second lawsuit filed by plaintiff against BCBG was filed
on or a b o u t April 19,
action was pending.
instituted while the f i r s t f e d e r a l
BCBG a s s e r t s that, to date, it has not been
p r o p e r l y served in that action.
Defendants maintain that, in this action, plaintiff has failed
to plead a claim sounding in employment discrimination, either in
h e r complaint, which fails to identify plaintiff‘s national o r i g i n
or the origin or race of t h e individual defendants, or in her
unsworn opposition, both of which consist of m e r e
It is defendants‘ position that plaintiff has failed
to make out a prima facie claim of employment discrimination.
CPLR 3 2 1 1 (a) "Motion to dismiss cause of action,"
" [ a ] party may move for judgment dismissing one or more causes
of action asserted against h i m on the ground that:
the pleading f a i l s to state a cause of action; . . . . "
To defeat a pre-answer motion to dismiss pursuant to CPLR
3211, t h e opposing party need o n l y assert f a c t s of an evidentiary
nature which fit within any cognizable legal theory. Bonnie
ashi ions v Bankers T r u s L Co. , 2 6 2 AD2d 188 (1" Dept 1999). Further,
the movant has the burden of demonstrating t h a t , based upon the
f o u r corners of t h e complaint liberally construed in favor of the
plaintiff, t h e pleading states no legally cognizable cause of
Guggenheimer v Ginzbuxg, 4 3 N Y 2 d 2 6 8
Chase Manhattan B a n k , 3 0 0 AD2d 2 2 6 ( l E t
Dept 2 0 0 2 ) .
Defendants' motion is granted and the complaint is dismissed.
"A plaintiff alleging racial discrimination in
employment has the initial burden of establishing
a prima f a c i e case of discrimination. To meet this
burden, a plaintiff must show that (1) he or she is
a member of a protected c l a s s ; ( 2 ) he or ahe was
qualified to hold the position; ( 3 ) he or she was
terminated from employment or suffered another
adverse employment action; and (4) t h e discharge
or o t h e r adverse action occurred u n d e r circumstances
g i v i n g rise to an i n f e r e n c e of discrimination [internal
Lambert v Macy's E a s t , I n c . , 8 4 AD3d 7 4 4 , 7 4 5 (2d Dept 2011) (claim
based on a l l e g e d violations of Executive Law 5 296 and NYCHRL)
also F u r f e r o v S t . John's University,
2012 NY S l i p
O p 2452 ( 2 d Dept 2012) (age discrimination claim).
"TO establish entitlement to judgment as a matter of
law in a case alleging discrimination, t h e 'defendants
must demonstrate either plaintiff's failure to establish
every element of intentional discrimination, or, having
offered legitimate, nondiscriminatory reasons for their
challenged actions, the absence of a material issue of
[internal citation omitted] . "
Sayegh v F i o r e ,
( 2 d Dept
981, 9 8 2
employment discrimination based on national origin, pursuant to
In the case at b a r , plaintiff h a s failed to allege any facts
to substantiate her claim that she w a s terminated based on her
origin, or as a
result of retaliation.
complaint consists of bare conclusory statements, fails to identify
plaintiff's national origin, and only incidentally r e f e r s to
plaintiff as African-American.
Further, plaintiff's presumed
opposition was not submitted in legally admissible form and,
consequently, fails to raise a triable issue of f a c t .
generally B r i g g s v 2 2 4 4 Morris L . P .
3 0 AD3d 2 1 6
Dept 2 0 0 6 )
"[Elven accepting the allegations of t h e complaint as true,
and giving her every favorable inference to be drawn therefrom, the
legal conclusions a r e not entitled to consideration.
( 2 d Dept 2 0 0 6 ) .
2 9 AD3d 7 3 1 , 7 3 2
Hernandez, 61 AD3d 5 6 5 ( I a t
Tectrade Internalional Ltd.
v Fertilizer Development and Investment, B.V.,
2 5 8 AD2d 3 4 9
Dept 1 9 9 9 ) . Moreover, even though a p r o se litigant's submissions
a r e h e l d to less stringent standards, especially in situations in
which c i v i l rights are at issue, courts need not accept as t r u e
conclusions of law or unsupported allegations. Gonzalez v New York
S t a t e D i v i s i o n of
Human R i g h t s , 2011 WL 4 5 8 2 4 2 8 , 2011 U S Dist Lexis
114662 (SD NY 2011).
Nor does t h e court find any merit in plaintiff's argument that
BCBG should be h e l d responsible for the alleged actions of t h e
individual defendants, even assuming that sufficient allegations
were made concerning illegal discriminatory action on their parts.
There is no allegation that BCBG, as their employer, knew of auch
conduct or condoned it.
Zakrzewska v N e w School, 14 NY3d
Lastly, with respect to plaintiff's allegaLion of illegal
retaliation, t h e r e is no evidence of a causal connection between
plaintiff's earlier discrimination complaints asserted as against
BCBG and hew termination almost one year later. Williams v C i t y of
New York, 3 8 AD3d 2 3 8
(1" Dept 2 0 0 7 ) .
Based on the foregoing, it is hereby
ORDERED that defendants' motion to dismiss the complaint is
granted and the complaint is dismissed with c o s t s and disbursements
to defendanta as
the Clerk upon
submission of an
Dated: April 1.6, 2 0 1 2
Joan M . Kenney, J.S.C.
COUNPl CLERKS OFFICE