Belizaire v. Rav Investigative & Sec. Servs. Ltd., 12cv08268 (JPO) (DF)

• Decision Date: 16 October 2014
• Docket Number: 12cv08268 (JPO) (DF)
• Parties: SAINSLOT BELIZAIRE, Plaintiff, v. RAV INVESTIGATIVE AND SECURITY SERVICES LTD., Defendant.
• Court: U.S. District Court — Southern District of New York

SAINSLOT BELIZAIRE, Plaintiff,
v.
RAV INVESTIGATIVE AND SECURITY SERVICES LTD., Defendant.

12cv08268 (JPO) (DF)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

October 16, 2014

REPORT AND RECOMMENDATION

TO THE HONORABLE J. PAUL OETKEN, U.S.D.J.:

This matter is currently before the Court for a damages inquest on a judgment entered in favor of pro se plaintiff Sainslot Belizaire ("Plaintiff") against defendant RAV Investigative and Security Services, Ltd. ("Defendant"), on Plaintiff's employment-related claims. (See Dkt. 13.) For the reasons that follow, I recommend (1) that Plaintiff be awarded damages calculated as set out below, and (2) as to certain claims that Plaintiff has not supported with sufficient factual allegations to justify a damages award, that he be permitted to amend his Complaint to remedy the pleading defects.

BACKGROUND

A. Factual Background¹

Plaintiff commenced this action by filing a Complaint on November 8, 2012, alleging that Defendant had discriminated against him based on his national origin and age, in violation of

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Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq.; and the New York State Human Rights Law ("HRL"), N.Y. Exec. L. § 290 et seq. (See Dkt. 2.)

According to his Complaint, Plaintiff was hired by Defendant as a security guard on January 14, 2009, and was assigned to a work site at New York University ("NYU"), where he checked students' identification. (Compl., at 3, 8.²) He had excellent attendance and job performance. (See id.) Plaintiff worked five days per week until approximately August 2011, when his schedule was reduced, without notice, to four days per week. (Id. at 9.) On the days that he was scheduled, Plaintiff worked an eight-hour shift, with one half-hour break.³ (See Tr., at 29-30; see also Dkt. 17-1 at 18, 19 (earnings statements showing that Plaintiff worked 37.5 hours per week during pay periods in 2009 and 2010).) Throughout his employment with Defendant, Plaintiff's wage was $8.00 per hour. (Id.)

Plaintiff claims, however, that Defendant did not pay him in either a timely manner or in the correct amount. (See Compl., at 3, 8.) In this regard, Plaintiff asserts that, although his salary was to be paid "weekly," Defendant's payroll checks were "regularly delayed two or three weeks apart." (Belizaire Aff., at 1.) Moreover, according to Plaintiff, the payroll checks

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frequently bounced (Compl., at 8); he asserts that Defendant generally waited about six weeks to replace a bounced payroll check, and that there would frequently be insufficient funds in the company's account to pay the replacement check as well (see Tr., at 10-12, 16-17). Plaintiff also contends that, while other employees were permitted to take vacation annually, Defendant never permitted him to do so. (Compl., at 3; see also id. at 8 (Plaintiff alleging, in attached administrative complaint, that he "never received a vacation or a day off as everyone else did").)

Plaintiff, at 51 years old, was the oldest employee and the only employee of Haitian national origin at his work site. (Id. at 8-9.) Plaintiff asserts that he never saw another employee treated in the same manner that he was treated. (Id. at 9.)

In December 2011, when Plaintiff received three paychecks from Defendant that were returned by the bank due to insufficient funds, he reported the issue to the Department of Labor. (See id. at 9.) On December 30, 2011, he also returned three bounced checks to Defendant and asked to be paid by certified check. (Id.) Then, on January 2, 2012, operations manager Terry Greenidge called Plaintiff, informed him that he no longer worked at NYU, and directed the police to escort him off the premises. (See id. at 8-9.) Defendant never called Plaintiff to work at any other site. (Id. at 9.) Defendant still owed Plaintiff wages at the time of Plaintiff's termination (see Tr., at 38), but Plaintiff did not receive any wages from Defendant thereafter (see id. at 39).

B. Procedural History

On January 17, 2012, Plaintiff filed a charge with the New York State Division of Human Rights and, through that agency, with the U.S. Equal Employment Opportunity Commission ("EEOC"), alleging that Defendant had subjected him to unlawful discrimination in his employment and termination from employment, as a result of his national origin and age, and in

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retaliation for his filing of a complaint against Defendant with the Department of Labor. (See Compl., at 8-10.) On September 28, 2012, having "adopted the findings of the state or local fair employment practices agency that investigated this charge,"⁴ the EEOC informed Plaintiff that it was closing its case file and advised Plaintiff of his right to sue in federal court. (Id. at 5-7.)

Plaintiff filed his pro se Complaint in this case on November 8, 2012 (Dkt. 2), along with a request to proceed in forma pauperis (Dkt. 1), which was granted (see Dkt. 4). Service was effected on Defendant by the U.S. Marshals Service on April 5, 2013. (See Dkt. 9.) Defendant's answer to the Complaint was therefore due on April 26, 2013 (see id.), but, to date, Defendant has neither filed an answer, nor otherwise appeared in this proceeding.

The Clerk of Court entered Defendant's default on May 10, 2013 (see Dkts. 10, 11), and Plaintiff moved for a default judgment the same day (see Dkt. 12). On June 14, 2013, the Court (Oetken, J.) directed the entry of a default judgment against Defendant and referred the matter to this Court for an inquest on damages. (See Dkt. 13.) A default judgment against Defendant was entered on June 19, 2013. (See Dkt. 14.) On July 26, 2013, Plaintiff wrote to this Court, requesting that the default judgment be "implement[ed]" and that Defendant be ordered to pay damages and interest in the amount of $385,000 (see Dkt. 15), and this Court then set a schedule for Plaintiff to submit proposed findings of fact and conclusions of law concerning his damages (see Dkt. 16). In particular, this Court directed Plaintiff to explain how he calculated any damages figures and to support his damages with an affidavit and documentary evidence. (See id.) The Court also cautioned Defendant that, if it failed to respond to Plaintiff's submission or

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to contact the Court by October 16, 2013 to request a hearing, this Court intended to issue a report and recommendation on the basis of Plaintiff's written submission alone. (See id.)

Plaintiff timely submitted an affidavit and supporting documentation, as well as an affirmation of service. (See Dkts. 17, 18.) Plaintiff's affidavit, however, provided few facts or allegations not contained in the Complaint, and the supporting documents he submitted consisted only of the following:

(a) a copy of a letter from the New York State Department of Labor, dated December 6, 2012, stating that Plaintiff's case had been referred to an investigator (see Dkt. 17 at 6);

(b) copies of several documents related to Plaintiff's denial of public benefits in February and March of 2012 (see id. at 7-14);

(c) copies of two notices from Chase Bank, each indicating that a particular check issued from Defendant to Plaintiff was being returned due to insufficient funds (see id. at 15, 20);

(d) copies of two letters from Plaintiff to Defendant demanding reissuance of paychecks that did not clear due to insufficient funds (see Dkt. 17-1 at 1, 23-24); and

(e) copies of 10 checks (and what appears to be 42 check stubs, and five backs of checks)⁵ apparently issued by Defendant, ranging in amount from $160.08 to $471.30; it appears that three of the checks were returned by a bank without explanation; two others were returned for the explicit reason (as indicated by the code "NSF") that the account had insufficient funds to cover the checks; and three others were marked "replacement ck" (see Dkts. 17, 17-1).

When Defendant's deadline to oppose Plaintiff's submission passed without any opposition having been filed by Defendant, Plaintiff wrote to alert the Court. (See Dkt. 20.) On

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December 11, 2013, Plaintiff again wrote to the Court, urging that damages be awarded to him, as Defendant "seem[e]d to have deliberately trampled all legal proceedings" related to his case. (Dkt. 21.) On February 28, 2014, in order to obtain clarification of the documents presented by Plaintiff and the basis for his claim for $385,000 in damages, this Court issued an Order scheduling an inquest hearing. (See Dkt. 23.)

On March 26, 2014, this Court held an inquest hearing, at which Plaintiff testified and submitted additional documentary evidence. (See Tr.; Dkt. 26.) As Plaintiff did not have the benefit of counsel, the Court attempted to elicit testimony from him that would assist the Court in ascertaining his damages; in this regard, the Court asked Plaintiff questions concerning, inter alia, the frequency with which Defendant had issued bad checks to him (see Tr., at 6), whether Defendant had ever issued valid replacement checks for those checks that did not initially clear (see id. at 10, 16-18, 38), which of the copies of paychecks and stubs that he had submitted represented checks that had not cleared (see id. at 13-14, 54), whether individuals similarly situated to him had received vacation time, sick time, and other benefits that were allegedly denied to him (see id. at 21-30), and the type of emotional distress that he had suffered (see id. at 57-62).

As Plaintiff's testimony was often vague, and as Plaintiff indicated that he could provide a written submission detailing his calculation of the damages due to him and explaining the significance of the documents already submitted (see id. at 18-19), this Court afforded Plaintiff an additional opportunity to substantiate his damages. By Order dated April 24, 2014, the Court specifically directed Plaintiff to supplement his written submissions and oral testimony with details about his unpaid...