Rubert v. King, 19-CV-2781 (KMK)

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtKENNETH M. KARAS, United States District Judge
PartiesJOSE LUIS RUBERT, Plaintiff, v. DANIEL KING, et al., Defendants.
Docket NumberNo. 19-CV-2781 (KMK),19-CV-2781 (KMK)
Decision Date24 September 2020

DANIEL KING, et al., Defendants.

No. 19-CV-2781 (KMK)


September 24, 2020



Jose L. Rubert
Goshen, NY
Pro se Plaintiff

Christine L. Hogan, Esq.
Emily C. Haigh, Esq.
Littler Mendelson, P.C.
New York, NY
Counsel for Defendant Walmart, Inc.

KENNETH M. KARAS, United States District Judge:

Pro se Plaintiff Jose Luis Rubert ("Plaintiff") brings this Action, pursuant to 42 U.S.C. § 1981, Title VII, and New York State Human Rights Law ("NYSHRL"), against Walmart, Inc. ("Walmart"), Walmart security guard Daniel King ("King"), Walmart store manager "Carry," and Walmart assistant manager "Sam," (collectively, "Defendants"), alleging that Defendants discriminated and retaliated against him because of his race and national origin. (See Amended Complaint ("Am. Compl.") (Dkt. No. 6).) Before the Court is Walmart's Motion To Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (See Not. of Mot. (Dkt. No. 27).) For the following reasons, the Motion is granted in part and denied in part.

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I. Background

A. Factual Background

The following facts, drawn from Plaintiff's Amended Complaint, are taken as true for the purpose of resolving the instant Motion.1

During the relevant period, Plaintiff, who is Puerto Rican and of Hispanic heritage, was an employee of Walmart at a store location in Monticello, NY. (Am. Compl. 3.)2 King, who is white, worked at the same Walmart store as a "security guard supervisor." (Id. at 8, 11.) From March 2016 through February 2017, King sent numerous text messages to Plaintiff's wife, falsely claiming that Plaintiff was having an affair with two Walmart employees. (Id. at 5.) King's conduct eventually "destroyed [Plaintiff's] marriage and forced [Plaintiff] to move out of [his] home." (Id. at 8.) Plaintiff first discovered that King was sending these text messages in June 2017. (Id.) Plaintiff then "tried to have a discussion" with King about King's conduct; but, in response, King "initiated a campaign against [Plaintiff] at work." (Id.) In particular, King

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told Plaintiff's coworkers that Plaintiff was a "drug addict," and called him names, including, "junkie," "spic," "lowlife," and "other expletives." (Id.) King also used "his position as a security guard" to "harass[]" and "stalk[]" Plaintiff, "watching [Plaintiff] through the cameras, sending [him] text messages and basically tormenting [him]." (Id. at 9.)

In July 2017, Plaintiff brought a copy of a text message exchange in which King called Plaintiff a "spic" to his store manager, Sam, and told Sam that he found King's message racist and humiliating. (Id. at 10.) In reply, Sam "laughed and told [Plaintiff] not to take Daniel King seriously," but said he would speak with King. (Id.) However, King's behavior simply "intensified." (Id.) Plaintiff therefore spoke to Carry, a Walmart assistant manager as well. (Id.) Carry responded that she "didn't know that the word 'spic' was racist against Hispanics" (although she acknowledged knowing that the word "wetback" was a racial epithet). (Id.) Thereafter, King's behavior "got worse" as was subsequently witnessed by several additional coworkers. (Id.)

On August 2, 2017, Plaintiff engaged in a "confrontation [with King] in a Walmart parking lot after [] King made reference [to Plaintiff's] daughters, ages 7 and 11 at the time, going to [King's] house." (Id. at 11; see also Decl. of Emily Haigh, Esq. in Supp. of Mot. ("Haigh Decl.") Ex. B ("Arrest Report") (Dkt. 29-2).) Police arrived at the scene, and arrested Plaintiff on several charges, including assault, and reported that Plaintiff had cut King's arm. (See generally Arrest Report.) The altercation and arrest led to Plaintiff's termination by Walmart and his conviction in Sullivan County Court. (See Am. Compl. 11; see also Haigh Decl. Ex. A ("Certificate of Conviction") (Dkt. 29-1).)

Plaintiff now seeks $7,000,000 in damages relating to the loss of his job, wages, and marriage, as well as violations of company policy, and the discrimination, retaliation, and

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harassment he alleges he endured. (Am. Compl. 6.) Plaintiff acknowledges that he did not file a discrimination charge with the EEOC or any other government agency, but explains that this was because he "did not know about such organization (EEOC)," and because he tried to resolve the issue with Walmart management. (Id.)

B. Procedural Background

On March 26, 2019, Plaintiff filed his initial Complaint and an Application to proceed in forma pauperis ("IFP"). (See Dkt. Nos. 1-2.) On April 9, 2019, IFP status was granted. (See Dkt. No. 4.) On April 30, 2019, Chief Judge McMahon ordered Plaintiff to amend his Complaint, noting that Plaintiff's initial Complaint did not adequately allege that Walmart was aware of a racial dimension to Plaintiff's dispute with King. (See Dkt. No. 5.) On June 19, 2019, Plaintiff filed his Amended Complaint. (See Am. Compl.) On July 25, 2019, the Court issued an Order of Service as to Walmart and King, and directed Walmart to ascertain the identities of "Sam, the Store Manager" and "Carry, the Assistant Manager" and provide the information to Plaintiff. (See Order of Service (Dkt. No. 9).) The Order of Service further specified that, within 30 days of receiving the information from Walmart, Plaintiff should amend his complaint to properly name Sam and Carry. (See id.) On September 30, 2019, the U.S. Marshals Service served copies of the Summons and Complaint on Walmart, and believing that they had thereby served King as well, reported that service was executed as to both. (See Dkt. Nos. 17-18.) On October 4, 2019, Counsel for Walmart entered an appearance on behalf of Walmart only. (See Dkt. Nos. 13-14.)

On November 1, 2019, Walmart provided the requested information and filed a letter-motion requesting permission to file a motion to dismiss. (See Dkt. Nos. 19-20.) On November 18, 2019, Plaintiff filed a letter opposing Walmart's request. (See Dkt. No. 23.) On November

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20, 2019, the Court reminded Plaintiff that, pursuant to the Court's Order of Service, he must file an amended complaint identifying "Sam" and "Carry" by December 1, 2019. (See Dkt. No. 24.) The Court also set a briefing schedule for Walmart's proposed motion. (See id.) Plaintiff did not, however, file a second amended complaint. (See Dkt.)

On January 17, 2020, Walmart filed the instant Motion and accompanying papers. (See Not. of Mot.; Mem. of Law in Supp. of Mot. ("Def.'s Mem.") (Dkt. No. 28); Haigh Decl.) On February 26, 2020, Plaintiff filed his Opposition. (See Pl.'s Mem. of Law in Opp'n to Mot. ("Pl.'s Mem.") (Dkt. No. 33); Pl.'s Decl. in Opp'n to Mot. ("Pl.'s Decl.") (Dkt. No. 34).) On March 17, 2020, Walmart filed its Reply. (See Def.'s Reply Mem. of Law in Further Supp. of Mot. ("Def.'s Reply") (Dkt. No. 37).) On May 29, 2020, Plaintiff filed a Sur-Reply. (See "Pl.'s Reply Mem." (Dkt. No. 39).) On June 9, 2020, Walmart filed a letter noting that Plaintiff's Sur-Reply was impermissible. (See Dkt. No. 40.)3 On July 14, 2020, at the request of the Court, Walmart filed a letter explaining why the purported service on King was insufficient, and clarifying that Counsel for Walmart represented only Walmart and not King. (See Dkt. No. 41.)

II. Discussion

A. Standard of Review

The Supreme Court has held that although a complaint "does not need detailed factual allegations" to survive a motion to dismiss, "a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration and quotation marks omitted). Indeed, Rule 8 of the Federal Rules of Civil Procedure

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"demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks omitted). "Nor does a complaint suffice if it tenders naked assertions devoid of further factual enhancement." Id. (alteration and quotation marks omitted). Instead, a complaint's "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly, 550 U.S. at 555. Although "once a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint," id. at 563, and a plaintiff must allege "only enough facts to state a claim to relief that is plausible on its face," id. at 570, if a plaintiff has not "nudged [his or her] claims across the line from conceivable to plausible, the[] complaint must be dismissed," id.; see also Iqbal, 556 U.S. at 679 ("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. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged—but it has not 'show[n]'—'that the pleader is entitled to relief.'" (citation omitted) (second alteration in original) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678-79 ("Rule 8 marks a notable and generous departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.").

In considering Defendant's Motion, the Court is required to "accept as true all of the factual allegations contained in the [Amended Complaint]." Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (same). And, the Court must "draw[] all reasonable inferences in favor of the plaintiff." Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie's Int'l PLC, 699 F.3d 141, 145 (2d Cir. 2012)). Where, as here, a plaintiff proceeds pro se, the...

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