Akhtab v BCBG Max Azria Group Inc.

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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 publication. ! c [* 1] ON 411 912012 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: - - 30AN Mn KENNEY PART Justice - - _- ----.-Index Number : 106770/2011 AKHTAB, MAGEEDAH 2/71L MOTION SEQ.N.& O' I vs. BCEG MAX AZRIA GROUP SEQUENCE NUMBER : 001 DISMISS Awwsrlhg Amdsvtts Replying Ahldavitu MOTJONDATE w, - The following papers, numbemd Ito Notke of Motlon#&r t Show Cause o - Exhiblta + AAQ ,Q - L J ? - were h a d on thls motion tM&& Affldavlta - Exhiblts /*A) r/M/mo a 1 [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: PART 8 - - - - - - - - - - - --X MAGEEDAH AKHTAB, Plaintiff, _ _ - - - _ - - _ I - I _ - _ _ - - _ _ - - DECJSION & QRDER 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, Defendants. _ - _ - _ - _ _ - - _ - - _ - - - - -- - - - - - - - - - - - - - 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 Law 5 296, 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 Executive Law § (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 § 296, asserted as against defendant Sara Derr (Derr); (8) violation of New York [* 3] Executive Law 5 296, 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 (NYCHRL), Of 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. Id, 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 on such violation must be filed within 90 days after receiving the right- to-sue l e t t e r . Id. Having dismissed the federal claim, the federal court determined that it lacked the jurisdiction to adjudicate the state law claims, which the f e d e r a l court remanded to this court on October 13, 2011. Id. 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, 2009. According to the complaint, plaintiff alleges that, beginning on April 1, 2 0 0 9 , various events 2 took place that led to her [* 4] 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 retaliation. 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 national origin. In addition, plaintiff s o n l y allegation regarding retaliation is a claim t h a t she was retaliated against for filing an administrative charge with EEOC in 2008. I d . Defendants maintain 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 assertions. 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, 3 [* 5] 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 against BCBG. 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. Reply, 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 this dismissal. 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. 2010, 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 assertions. conclusory It is defendants position that plaintiff has failed to make out a prima facie claim of employment discrimination. 4 [* 6] DISCUSS ION states CPLR 3 2 1 1 (a) "Motion to dismiss cause of action," , that " [ a ] party may move for judgment dismissing one or more causes of action asserted against h i m on the ground that: (7) 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 & CO. 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 action. Guggenheimer v Ginzbuxg, 4 3 N Y 2 d 2 6 8 (1977); SalleS V 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 citations omitted] 'I 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) 5 ; see [* 7] also F u r f e r o v S t . John's University, , aD3d 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 fact' . [internal citation omitted] . " + . Sayegh v F i o r e , 88 AD3d ( 2 d Dept 981, 9 8 2 20ll)(allegation of employment discrimination based on national origin, pursuant to Executive Law § 296). 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 race, national origin, or as a result of retaliation. The 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 . I 3 0 AD3d 2 1 6 See (lRt 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 plaintiff failed discrimination. Medical Center, to state DuBois a prima v Brookdale facie illegal and Plaintiff's bare legal conclusions a r e not entitled to consideration. 6 of University Hospital ( 2 d Dept 2 0 0 6 ) . 2 9 AD3d 7 3 1 , 7 3 2 case Kaisman v [* 8] Hernandez, 61 AD3d 5 6 5 ( I a t Dept 2009) ; Tectrade Internalional Ltd. v Fertilizer Development and Investment, B.V., 2 5 8 AD2d 3 4 9 (InL 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 469 (2010). 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 taxed by the Clerk upon 7 submission of an [* 9] accordingly. Dated: April 1.6, 2 0 1 2 I' W Joan M . Kenney, J.S.C. FILED APR 182012 NEW YORK COUNPl CLERKS OFFICE 8

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