Tawfik v. Georgatos et al

Filing 15

MEMORANDUM & ORDER: IT IS HEREBY ORDERED that: (1) Plaintiff's application to proceed in forma pauperis (ECF No. 14 ) is GRANTED; (2) The Clerk of the Court is respectfully directed to reopen and restore this case to the Court's docket; (3 ) Upon review of the pleadings, the Complaint is sua sponte DISMISSED without prejudice for failure to state a claim for relief pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Rule 8; (4) Plaintiff is GRANTED leave to file an Amended Complaint consistent with this Order on or before August 23, 2021. Plaintiff is WARNED that if he fails to file an Amended Complaint on or before August 23, 2021, judgment will enter and this case will be dismissed. (5) Pursuant to 28 U.S.C. § 1915(a )(3), the Court certifies that any appeal from this Order would not be taken in good faith and therefore in forma pauperis status is DENIED for the purpose of any appeal. The Clerk of the Court is respectfully directed to mail a copy of this Order to the pro se Plaintiff. Ordered by Judge Joanna Seybert on 7/14/2021. (CM to pro se plaintiff) (Florio, Lisa)

FILED 
CLERK 

7/14/2021 5:44 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------X
SALAH H. TAWFIK,
Plaintiff,

MEMORANDUM & ORDER
20-CV-5832(JS)(AKT)

-againstPETER GEORGATOS, ARCHIE GEORGATOS,
and PREMIER DINER,

Defendants.
----------------------------------X
APPEARANCES
For Plaintiff:
Salah H. Tawfik, pro se
134 La Bonne Vie, Apartment C
East Patchogue, New York 11772
For Defendants:

Saul D. Zabell, Esq.
Diana Marie McManus, Esq.
Zabell & Collotta, PC
One Corporate Drive, Suite 103
Bohemia, New York 11716

SEYBERT, District Judge:
On or around November 30, 2020, plaintiff Salah H. Tawfik
(“Plaintiff”), proceeding pro se, initiated this action pursuant
to Title VII of the Civil Rights Act of 1964, as codified, 42
U.S.C. §§ 2000e to 2000e-17 (“Title VII”), by filing a Complaint
and an application to proceed in forma pauperis (“IFP”).
D.E.

1;

IFP

Mot.,

D.E.

2.)

Currently

before

the

(Compl.,
Court

is

Plaintiff’s In Forma Pauperis Long Form Application (AO 239) (the
“Long Form Application”).

(Long Form Application, ECF No. 14.)

Upon review of the Long Form Application, the Court finds that
Plaintiff is qualified by his financial status to commence this
action without prepayment of the filing fees.

And, upon review of

the Complaint, the Court finds that it fails to state a claim and
it is therefore is DISMISSED WITHOUT PREJUDICE pursuant to 28
U.S.C. § 1915(e)(2)(B)(ii) and Plaintiff is GRANTED LEAVE TO FILE
AN AMENDED COMPLAINT on or before August 23, 2021.
PROCEDURAL HISTORY
On December 8, 2020, the Court entered an Order denying
Plaintiff’s IFP request and directing him to remit the filing fee
within fourteen (14) days.

(Dec. 8, 2020 Order, ECF No. 5.)

In

that Order, the Court warned Plaintiff that “a failure to timely
comply . . . will lead to the dismissal of the Complaint without
prejudice and judgment will enter.”

(Id. at 3.)

Plaintiff did

not comply and on January 19, 2021, the Court entered an Electronic
Order granting Plaintiff an additional fourteen (14) days to remit
the filing fee.

(See Jan. 19, 2021 Elec. Order.)

January 19,

Electronic

2021

Order,

the

Court

again

In the
warned

Plaintiff that a failure to pay the filing fee “will lead to the
dismissal of the Complaint without prejudice and judgment will
enter.”

(Id.)

On

January

20,

2021,

Defendants

mailed

Electronic Order to Plaintiff at his address of record.
Serv., ECF No. 8.)

the

(Aff.

Plaintiff did not respond to the January 19,

2021 Order or otherwise communicate with the Court.

As such, on

February 17, 2021, the Court dismissed the Complaint without

2

prejudice for failure to prosecute pursuant to Federal Rule of
Civil Procedure 41(b).

(Feb. 17, 2021 Order, ECF No. 10.)

On or around March 11, 2021, Plaintiff filed a letter
that the Court liberally construed as a motion for reconsideration
of the February 17, 2021 Order dismissing the Complaint.
Letter Motion, ECF No. 12; Mar. 26, 2021 Order, ECF No. 13.)

(See
By

Order dated March 26, 2021, the Court granted reconsideration in
part and granted Plaintiff thirty days to complete and return the
Long Form Application. (Mar. 26, 2021 Order.) The Court otherwise
denied the motion and deferred ruling on whether it would direct
the Clerk of the Court to re-open this this case.

(Id.)

On

April 22, 2021, Plaintiff timely filed the Long Form Application.
BACKGROUND1
Plaintiff,

using

the

Court’s

form

complaint

for

employment discrimination, asserts claims against Peter Georgatos
(“Peter”), Archie Georgatos (“Archie”), and the Premier Diner (the
“Diner” and collectively, “Defendants”) pursuant to Title VII.
(See Compl.; see id. § II.)

Specifically, Plaintiff alleges that

Defendants discriminated against him by terminating him on account
of his race, religion, and disability or perceived disability.

Excerpts from the Complaint are reproduced here exactly as they
appear in the original.
Unless noted, errors in spelling,
punctuation, or grammar have not been corrected or noted.
1

3

(Id. §§ III.A & D.)

In its entirety, Plaintiff alleges:

I was hired by Mr. Georgatos on March 2018.
Someone to work only weekend I agreed to do so
I needed my job so bad specially I had no
income for 5 weeks. Mr. Georgatos refused to
let me work he fired me telling me to go look
for another job despite he was going to hire
someone else he discriminated against me
because my disability and that’s what his
lawyer said I will not be able to do my job I
also had a note from my doctor allowing me to
go back to work Mr. Georgatos couldn’t keep
his promise neither his kids by allowing me
not to handle liquors I was asked too many
times by his son to help him making drinks
going against my religious believes also too
many people were absent due to medical reasons
were able to return to work I couldn’t find a
job over 3 month caused a financial stress to
me I will ask the court to reward me $4800 due
to Mr. Georgatos firing me not giving me ahead
of time notice go looking for a job he adviced
me when I was out to call him back when ready
to return to work he lied to me.
(Id. § III.E.)

Plaintiff also attached a Notice of Right to Sue

letter, dated September 16, 2020.

(Id. § IV.B; id. at ECF p. 11.)

DISCUSSION
I.

Plaintiff’s In Forma Pauperis Application is Granted
Upon review of the Long Form Application, the Court finds

that Plaintiff is qualified by his financial status to commence
this action without prepayment of the filing fees.
§ 1915(a)(1).

See 28 U.S.C.

Therefore, Plaintiff’s request to proceed in forma

pauperis is GRANTED.

4

II.

Consideration of the Complaint Under 28 U.S.C. § 1915
A. Standard of Review
28 U.S.C. § 1915 requires a district court to dismiss an

in

forma

pauperis

complaint

if

the

action

is

frivolous

or

malicious, fails to state a claim upon which relief may be granted,
or seeks monetary relief against a defendant who is immune from
such relief.

See 28 U.S.C. § 1915(e)(2)(B)(i)-(iii).

An action

is frivolous as a matter of law when, inter alia, it is based on
an “indisputably meritless legal theory” or when it “lacks an
arguable basis in law . . ., or [when] a dispositive defense
clearly exists on the face of the complaint.” Livingston v.
Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998).
Courts are obliged to construe the pleadings of a pro se
plaintiff liberally and to interpret them to raise the “strongest
[claims] that they suggest.”

Triestman v. Fed. Bureau of Prisons,

470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and
citations omitted) (emphasis in original); Harris v. Mills, 572
F.3d 66, 72 (2d Cir. 2009).

“But the ‘special solicitude’ in pro

se cases, has its limits –- to state a claim, pro se pleadings
still must comply with Rule 8 of the Federal Rules of Civil
Procedure, which requires a complaint to make a short and plain
statement showing that the pleader is entitled to relief.”

5

Wynn

v. Regus Mgmt. Grp. LLC, No. 21-CV-3503, 2021 WL 2018967, at *1
(S.D.N.Y. May 17, 2021) (quoting Triestman, 470 F.3d at 475).
Under Rule 8, a complaint must plead sufficient facts to
“state a claim to relief that is plausible on its face.”
Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Bell

“A claim has

facial plausibility when the plaintiff pleads factual content that
allows

the

court

to

draw

the

reasonable

inference

defendant is liable for the misconduct alleged.”
Iqbal,

556

U.S.

662,

678

(2009)

(citations

that

the

Ashcroft v.

omitted).

The

plausibility standard requires “more than a sheer possibility that
a defendant has acted unlawfully.”

Id.

While “detailed factual

allegations” are not required, “[a] pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a
cause of action will not do.’”

Id. (quoting Twombly, 550 U.S. at

557).
The purpose of Rule 8 “is to give fair notice of the
claim

being

asserted

so

as

to

permit

the

adverse

party

the

opportunity to file a responsive answer, prepare an adequate
defense and determine whether the doctrine of res judicata is
applicable.”
(N.D.N.Y.

Powell v. Marine Midland Bank, 162 F.R.D. 15, 16

1995)

citation omitted).

(internal

quotation

marks,

alterations,

and

A pleading that only tenders naked assertions

6

devoid of further factual enhancement” will not suffice.

Iqbal,

556 U.S. at 678 (internal quotation marks and citation omitted).
And

a

court

ambiguous,

may

vague

dismiss
or

a

complaint

otherwise

that

is

unintelligible

substance, if any, is well disguised.”

“so
that

confused,
its

true

Salahuddin v. Cuomo, 861

F.2d 40, 42 (2d Cir. 1988).
B. Title VII and the Americans with Disabilities Act
In light of Plaintiff’s pro se status, and the Court’s
responsibility to construe pro se pleadings liberally, the Court
considers whether Plaintiff plausibly alleges claims under both
Title VII and the Americans with Disabilities Act (“ADA”).
Title VII provides that “[i]t shall be an unlawful
employment

practice

for

an

employer

.

.

.

to

discharge

any

individual, or otherwise to discriminate against any individual
with respect to his compensation, terms, conditions, or privileges
of employment, because of such individual’s race, color, religion,
sex

or

national

origin.”

42

U.S.C.

§

2000e-2(a).

“This

antidiscrimination provision prohibits employers from mistreating
an

individual

characteristics.”

because

of

the

individual’s

protected

Williams v. New York City Dep’t of Educ., No.

21-CV-0520, 2021 WL 2338979, at *2 (S.D.N.Y. June 7, 2021) (citing
Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007)).

7

“Mistreatment

at work that occurs for a reason other than an employee’s protected
characteristic or opposition to unlawful conduct is not actionable
under these federal antidiscrimination statutes.”

Id.

“At the pleading stage in an employment discrimination
action, ‘a plaintiff must plausibly allege that (1) the employer
took adverse employment action against him, and (2) his race,
color, religion, sex, or national origin was a motivating factor
in the employment decision.’” Id. (quoting Vega v. Hempstead Union
Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015)).

“Examples of

materially adverse changes include termination of employment, a
demotion

evidenced

by

a

decrease

in

wage

or

salary,

a

less

distinguished title, a material loss of benefits, significantly
diminished material responsibilities, or other indices unique to
a particular situation.”

Vega, 801 F.3d at 85 (internal quotation

marks omitted) (quoting Terry v. Ashcroft, 336 F.3d 128, 138 (2d
Cir. 2003)).
Under

the

ADA,

employers

are

prohibited

from

“discriminat[ing] against a qualified individual on the basis of
disability in regard to job application procedures, the hiring,
advancement, or discharge of employees, employee compensation, job
training,

and

employment.”

other

terms,

conditions,

42 U.S.C. § 12112(a).

8

and

privileges

of

A prima facie case of

discrimination under the ADA requires that the plaintiff establish
that: “(1) the employer is subject to the ADA; (2) the plaintiff
is disabled within the meaning of the ADA or perceived to be so by
her employer; (3) she was otherwise qualified to perform the
essential functions of the job with or without a reasonable
accommodation; (4) she suffered an adverse employment action; and
(5) the adverse action was imposed because of her disability.”
Zelasko v. NYC Dep’t of Educ., No. 20-CV-5316, 2021 WL 2635121, at
*2 (E.D.N.Y. June 25, 2021) (quoting Davis v. N.Y.C. Dep’t of
Educ., 804 F.3d 231, 235 (2d Cir. 2015) (citation omitted)).
“[W]hile

a

discrimination

complaint

need

not

allege

facts

establishing each element of a prima facie case of discrimination”
to state a claim, “it must at a minimum assert nonconclusory
factual matter sufficient to ‘nudge [ ] [its] claims’ . . . ‘across
the

line

from

conceivable

to

plausible’

to

proceed.”

Id.

(alteration in original) (quoting Vega, 801 F.3d at 84) (further
citation omitted).
Under both Title VII and the ADA, “individual defendants
with

supervisory

control

over

a

personally liable under Title VII.”

plaintiff

may

not

be

held

Tomka v. Seiler Corp., 66

F.3d 1295, 1313 (2d Cir. 1995) abrogated on other grounds by
Burlington Indus. v. Ellerth, 524 U.S. 742 (1998); Postell v.

9

Wells, No. 20-CV-3991, 2020 WL 5774912, at *2 (S.D.N.Y. Sept. 26,
2020) (“Individuals are not subject to liability under Title VII,
. . . or the ADA.”) (citation omitted)).
C. Analysis of Plaintiff’s Claims
Here,
discrimination

the

Complaint

under

Title

fails

to

and

the

VII

sufficiently
ADA.

allege

Indeed,

the

allegations in support of Plaintiff’s employment discrimination
claims are conclusory and fail to meet Rule 8’s requirements. (See
generally Compl.)
that

his

Plaintiff has not alleged any facts suggesting

employer

characteristic.

discharged

him

based

on

any

protected

See, e.g., Calvo v. Amalgamated Hous. Corp., No.

20-CV-10859, 2021 WL 516843, at *3 (S.D.N.Y. Feb. 11, 2021)
(“Plaintiff does not allege facts suggesting that his employer
took

any

adverse

action

characteristic.”).

against

him

based

on

any

protected

Moreover, although Plaintiff checked the boxes

in the form Complaint that he was terminated due to his race,
religion, and/or disability, he has not alleged his race, religion,
or the nature of his disability.

(Compl. § III.D.)

Further,

although Plaintiff alleges that he was asked to make drinks, which
“goes against [his] religious belie[fs],” there are no allegations
that

Defendants

terminated

religious beliefs.

Plaintiff’s

employment

for

those

In the absence of any facts suggesting that

10

Plaintiff’s

termination

was

based

on

his

race,

religion,

or

disability, he has not alleged a plausible claim under Title VII
or the ADA.

See Lucas v. Apple Food Serv. of N.Y., LLC, No. 15-

CV-4007, 2015 WL 6507495, at *3 (E.D.N.Y. Oct. 27, 2015) (liberally
construing pro se pleadings and finding the “complaint fails to
plead any facts linking defendant’s conduct, i.e., the suspension
of plaintiff without pay for two (2) weeks and termination of her
employment,

to

plaintiff’s

race,

color,

gender,

religion

or

pregnancy, or supporting a reasonable inference that defendant
discriminated

against

plaintiff

because

of

those

protected

characteristics.”) (collecting cases); Littlejohn v. City of N.Y.,
795 F.3d 297, 311 (2d Cir. 2015) (holding that to state a Title
VII claim, the plaintiff need only satisfy the “minimal burden of
showing

facts

suggesting

an

inference

of

discriminatory

motivation”).
Moreover, because neither Title VII nor the ADA provides
for liability against individual defendants, Plaintiff’s claims
against Peter and Archie for employment discrimination under Title
VII or the ADA are DISMISSED.2

Taylor v. Children’s Vill., No.

In certain circumstances, individuals may be subject to liability
as employers under the New York State Human Rights Law, N.Y. Exec.
Law § 296 (“NYSHRL”). See Matusick v. Erie County Water Auth.,
757 F.3d 31, 53 (2d Cir. 2014). However, claims under the NYSHRL
are analyzed under same standard as Title VII and ADA claims.
2

11

20-CV-10997,

2021

WL

467128,

at

*5

(S.D.N.Y.

Feb.

8,

2021)

(“[U]nder the federal employment anti-discrimination statutes,
individuals may not be held liable.”) (citations omitted).
For these reasons, Plaintiff’s Complaint fails to state
a plausible claim for relief and is DISMISSED WITHOUT PREJUDICE
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

Taylor, 2021 WL

1581568, at *3 (sua sponte dismissing Title VII and ADA claims
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) where plaintiff did not
allege any facts suggesting that her religion or disability were
in any way related to her termination).

As discussed below,

Plaintiff is granted leave to file an amended complaint.

If

Plaintiff chooses to amend his complaint, “he must allege facts
showing or suggesting that Defendant[s] took adverse employment
action against him because of an impermissible factor.”

Calvo,

2021 WL 516843, at *3 (emphasis in original).

Therefore, the Court’s determination that Plaintiff’s claims are
implausible under the federal statutes means that they also fail
under state law. See, e.g., Tolbert v. Smith, 790 F.3d 427, 439
(2d Cir. 2012) (using the same standard to analyze racial
discrimination claims under Title VII and NYSHRL); Cornetta v.
Town of Highlands, 434 F. Supp. 3d 171, 186 (S.D.N.Y. 2020)
(applying the same standard to evaluate discrimination claims
whether under ADA or NYSHRL).
12

III. Plaintiff is Granted Leave to File an Amended Complaint
A

pro

se

plaintiff

should

ordinarily

be

given

“an

opportunity to amend a complaint to cure its defects, unless
amendment would be futile.”

Kellier v. Billups, No. 21-CV-3921,

2021 WL 2435556, at *6 (S.D.N.Y. June 14, 2021) (citing Hill v.
Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011)).
of

caution,

Plaintiff

is

GRANTED

leave

to

In an abundance
file

an

Amended

Complaint. Plaintiff shall file an Amended Complaint, detailing
his employment discrimination claims, on or before August 23, 2021.
Any

Amended

Complaint

must

be

captioned

“Amended

Complaint” and bear the same docket number as this Order: 20-CV5832(JS)(AKT).
COMPLETELY

Plaintiff is advised that an Amended Complaint

replaces

the

original

complaint

in

its

entirety.

Therefore, all claims and allegations that Plaintiff wishes to
pursue MUST be included in the Amended Complaint. Should Plaintiff
prepare an Amended Complaint, he should carefully consider this
Order and amend his claims accordingly because it will be reviewed
for compliance with this Order and for sufficiency under Rule 8
and 28 U.S.C. § 1915.

Plaintiff is WARNED that if he does not

file an Amended Complaint on or before August 23, 2021, judgment
shall enter and this case will be marked CLOSED.

13

Finally, while Plaintiff may pursue his litigation in
any way that he chooses, the Court wishes to advise Plaintiff of
the Hofstra Pro Se Legal Clinic to obtain legal assistance in
amending his complaint.

Although the Clinic is located at the

Central Islip Courthouse, it is not affiliated with the Court.
The Clinic may be reached at [phone] or [e-mail].
CONCLUSION
For the forgoing reasons, IT IS HEREBY ORDERED that:
(1)

Plaintiff’s application to proceed in forma pauperis

(ECF No. 14) is GRANTED;
(2)

The Clerk of the Court is respectfully directed to re-

open and restore this case to the Court’s docket;
(3)

Upon review of the pleadings, the Complaint is sua sponte

DISMISSED without prejudice for failure to state a claim for relief
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Rule 8;
(4)

Plaintiff is GRANTED leave to file an Amended Complaint

consistent with this Order on or before August 23, 2021. Plaintiff
is WARNED that if he fails to file an Amended Complaint on or
before August 23, 2021, judgment will enter and this case will be
dismissed.

14

(5)

Pursuant to 28 U.S.C. § 1915(a)(3), the Court certifies

that any appeal from this Order would not be taken in good faith
and therefore in forma pauperis status is DENIED for the purpose
of any appeal.

Coppedge v. United States, 369 U.S. 438, 444-45

(1962).
The Clerk of the Court is respectfully directed to mail
a copy of this Order to the pro se Plaintiff.

SO ORDERED.
_ /s/ JOANNA SEYBERT
Joanna Seybert, U.S.D.J.
Dated:

July
14 , 2021
Central Islip, New York

15