Ganny v. F.J.C. Security Services, Inc. et al

Filing 52

MEMORANDUM AND ORDER: For the aforementioned reasons, FJC's 42 Motion to Dismiss is DENIED. So Ordered by Judge Frederic Block on 9/13/2016. (Lee, Tiffeny)

UNITED STATES DISTRlCT COURT
EASTERN DISTRlCT OF NEW YORK

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ASGARALL Y GANNY,
Plaintiff,
-against-

MEMORANDUM AND ORDER
15-CV-1965 (FB)

FJC SECURlTY SERVICES, INC.,
Defendant.

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Appearances:
For the Plaintiff
CHRISTOPHER J. POGAN
Salenger, Sack, Kimmel & Bavarro, LLP
180 Froehlich Farm Blvd.
Woodbury, New York 11797

For the Defendant
ROSHNI CHAUDHARl
FordHarrison LLP
100 Park Ave., Ste. 2500
New York, NY 10017

BLOCK, Senior District Judge:
Asgarally Ganny ("Ganny") alleges his employer, FJC Security Services, Inc.
("F JC"), discriminated against him on the basis of race and national origin in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and New York State
Executive Law § 292 et seq. Pursuant to Federal Rule of Civil Procedure 12(b )(6), FJC
moves to dismiss on the grounds that Ganny did not ( 1) allege sufficient facts to support
his claims, or (2) exhaust his claims with the Equal Employment Opportunity Commission.
For the following reasons, FJC's motion to dismiss is DENIED.
I.
The facts relied upon in this memorandum and order are derived from Ganny's

Amended Complaint. Because this memorandum and order addresses a motion to dismiss ,
the facts in the Amended Complaint are accepted as true and all inferences are drawn in
favor of the non-moving party. See Littlejohn v. City ofNew York, 795 F.3d 297, 306 (2d
Cir. 2015).
A. Plaintiff alleges sufficient facts to establish a prima facie case of
employment discrimination.

To establish a prima facie case of employment discrimination under both Title VII
and the New York State Executive Law, a plaintiff must show that (1) he is a member of
a protected class, (2) he was qualified for his employment position, (3) he suffered an
adverse employment action, and (4) the defendant's discrimination on the basis of the
plaintiff's membership in a protected class motivated the adverse employment action.
Littlejohn, 795 F.3d at 307 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)); see also Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000) ("The
identical standards apply to employment discrimination claims brought under Title VII,
Title IX, New York Executive Law§ 296, and the Administrative Code of the City ofNew
York.").
The requirements for demonstrating these elements are "relaxed" during the initial
pleading stage of litigation.

Littlejohn, 795 F.3d at 307. To prevail against a Rule

12(b)(6) motion, an employment discrimination plaintiff"needs to present only minimal
evidence supporting an inference of discrimination[,]" Doe v. Columbia Univ., No. 152

1536, 2016 WL 4056034, at *5 (2d Cir. July 29, 2016), and "detailed factual allegations
are not required[,]" Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir.
2015) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). The plaintiff must
only allege facts that "give plausible support to a minimal inference of discriminatory
motivation." Littlejohn, 795 F.3d at 311 (emphasis added).
To determine whether such a minimal inference is plausible, the court draws on
"judicial experience and common sense." Vega, 801 F .3d at 86 (citing Ashcroft v. Iqbal,
556 U.S. 662, 679 (2009)). Circumstances such as preferential treatment of similarly
situated employees outside of the plaintiffs protected group support an inference of
discrimination. Littlejohn, 795 F.3d at 312 (quoting Leibowitz v. Cornell Univ., 584 F.3d
487, 502 (2d Cir. 2009)); see also Mandell v. Cty. of Suffolk, 316 F.3d 368, 3 79 (2d Cir.
2003) (citing Graham v. Long Island R.R., 230 F .3d 34, 39) ("[A] showing of disparate
treatment-that is, a showing that the employer treated plaintiff less favorably than a
similarly situated employee outside his protected group-is a recognized method of raising
an inference of discrimination for purposes of making out a prima facie case.").
In its motion to dismiss, FJC contends that Ganny did not allege facts demonstrating
discriminatory intent. Yet a minimal inference of discriminatory intent is plausible based
on the facts alleged in the Amended Complaint. Ganny claims that FJC treated him
differently than similarly situated white colleagues, which is a recognized method of

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raising an inference of race discrimination. See Mandell, 316 F.3d at 379. He supports
this claim by alleging that FJC supervisors punished him for a white colleague's
misbehavior and assigned him to hazardous work sites to which his white colleagues were
not assigned. Amended Complaint iii! 28, 29, 50, 55. These allegations make plausible a
minimal inference of discriminatory intent.
FJC also argues Ganny has not established that his white colleague, John Khelish,
was similarly situated. Mot. to Dismiss at 4. In the Amended Complaint, Ganny alleges
that Mr. Khelish is also a security guard employed by FJC. Amended Complaint iJ 21.
Furthermore, the fact that Mr. Khelish's car was reassigned to Ganny implies that Mr.
Khelish and Ganny had the same supervisors. Amended Complaint iJ 25. The Court infers
that Ganny had seniority merely because he began working for FJC before Mr. Khelish
began his employment, not because he had a different position.
B. Ganny exhausted his Title VII claim against FJC with the EEOC.
FJC argues that Ganny did not exhaust his Title VII claim with the EEOC because
the facts Ganny alleged in his EEOC complaint were different than those in the Amended
Complaint, and because Ganny filed an EEOC charge against his union and not against
FJC. These exhaustion arguments are unavailing.
Before filing a lawsuit under Title VII, an employment discrimination claimant must
administratively exhaust his or her claims by filing a complaint with the EEOC. Fitzgerald
v. Henderson, 251 F.3d 345, 358-59 (2d Cir. 2001 ). However, "[b]ecause these charges
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generally are filed by parties not versed in the vagaries of Title VII and its jurisdictional
and pleading requirements, [the Second Circuit has] taken a 'flexible stance in interpreting
Title VII's procedural provisions[.]'" Johnson v. Palma, 931 F.2d 203, 209 (2d Cir. 1991)
(quoting Egelston v. State University College at Geneseo, 535 F.2d 752, 754-55 (2d Cir.
1976)). For this reason, claims that are not exhausted may be included in a subsequent
lawsuit if they are "reasonably related" to those claims that were exhausted with the EEOC.
Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001) (quoting
Shah v. N.Y. State Dep't. of Civil Serv., 168 F.3d 610, 613 (2d Cir. 1999)). Claims are
reasonably related "when the factual allegations made in the administrative complaint can
be fairly read to encompass the claims ultimately pleaded in a civil action or to have placed
the employer on notice that such claims might be raised." Mathirampuzha v. Potter, 548
F.3d 70, 77 (2d Cir. 2008).
Courts analyze motions to dismiss by considering the facts alleged in the plaintiffs
complaint. However, when a defendant raises an exhaustion argument, it is also helpful
to look at any EEOC papers the parties provide to the court. See Williams v. New York City
Haus. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (quoting Freeman v. Oakland Unified Sch.
Dist., 291 F.3d 632, 637 (9th Cir. 2002)) ("The central question is whether the complaint
filed with the EEOC gave that agency 'adequate notice to investigate .... "'); see also
Deravin v. Kerik, 335 F.3d 195, 201 (2d Cir. 2003) (district court properly considered the
EEOC complaint when analyzing a Rule 12(b)(6) motion on exhaustion grounds).
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Here, Ganny's intake with the EEOC stated race and national origin discrimination
as the basis for his claim of employment discrimination. Mot. to Dismiss, Ex. A. When
prompted to specify, he stated that "they have their own people as their choice," which
seems to allude to FJC's preference for white employees. Id. In the same intake he named
Laurie Molly, an F JC employee, as the person responsible for this discrimination. Id. The
EEOC' s investigation into Ganny' s broad claims of race and national origin discrimination
would likely encompass the Title VII claims and supporting factual allegations he
ultimately includes in the Amended Complaint: that, among other things, FJC supervisors
punished him for a white colleague's misbehavior and assigned him to hazardous work
sites to which his white colleagues were not assigned, Amended Complaint iii! 28, 29, 50,
55. Therefore, the Title VII claims in the Amended Complaint are reasonably related to
the race and national origin claims exhausted with the EEOC and will not be dismissed.
This same EEOC intake does not support FJC's second exhaustion argument, that
FJC was not named in Ganny's EEOC complaint. As stated above, Ganny named Laurie
Molly, an FJC employee, as the person responsible for the alleged race and national origin
discrimination. 1 Mot. to Dismiss, Ex. A. Taking the "flexible stance" required in these

1

Based on the EEOC papers FJC produces in its motion to dismiss, and contrary to what
it alleges, Ganny does not appear to name his union, rather than FJC, as the adverse party in his
EEOC intake. Mot. to Dismiss, Ex. A. Instead, it is the EEOC that names the union as the
adverse party in the Notice of Charge of Discrimination. Id. Considering that Ganny did name
an FJC employee as the party responsible for his discrimination, the Court will not dismiss
Ganny's case merely because the EEOC sent the notice of charge to his union and not his
employer. See Deravin, 335 F.3d at 203 (district court's dismissal for failure to exhaust was
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Title VII cases, Johnson, 931 F.2d at 209, the Court finds that Ganny sufficiently identified
FJC in his EEOC complaint when he named Ms. Molly as the person responsible.
II.
For the aforementioned reasons, FJC's motion to dismiss is DENIED.

SO ORDERED
s/Frederic Block

REDERIC BLOCK
Senior United States

istrict Judge

Brooklyn, New York
September 13, 2016

inappropriate because of the lenient procedural standards for Title VII plaintiffs and the EEOC's
potential administrative error in the notice of charge).
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