Aboushama v. Dichrotec Thin Films LLC/Applied Coatings Group Inc.

Filing 36

-CLERK TO FOLLOW UP-ORDER granting defendant's 30 Motion for Judgment on the Pleadings and dismissing the complaint. Copy of this decision has been mailed to plaintiff at his last known address. Signed by Hon. David G. Larimer on 10/5/16. (EMA)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KHALIL M. ABOUSHAMA,
Plaintiff,
DECISION AND ORDER
v.
15-CV-6073L
EMF CORPORATION,
Defendant.
__________________________________________

Plaintiff Khalil Aboushama, appearing pro se, has brought an action against defendant
EMF Corporation, asserting claims of employment discrimination in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. ' 2000e et seq. EMF has moved for judgment on the
pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

BACKGROUND
I. Procedural History
Plaintiff, who identifies himself as a AMuslim man from Egypt,@ filed the original
complaint in this action on February 9, 2015. The defendant was named as ADichrotec Thin
Films LLC/Applied Coatings Group Inc.@ (ADTF/ACG@), with an address on Paul Road in
Rochester, New York. Plaintiff alleged that he had been employed by defendant, that he had
been subjected to workplace harassment on account of his religion and national origin, and that
his employment was terminated on May 7, 2013, after he complained about the harassment.
Attached to the complaint was a copy of a determination and right-to-sue letter issued by
the Equal Employment Opportunity Commission (AEEOC@) on November 28, 2014, relating to

plaintiff=s administrative charge against DTF/ACG. The EEOC found that plaintiff had failed to
report the alleged harassment prior to his termination, that he had been terminated for refusing to
sign a Adocument of expectations@ during a performance evaluation, and that there was no
evidence that his termination was based on his national origin, religion, or unlawful retaliation.
Dkt. #1 at 7.
After plaintiff filed the complaint in this Court, plaintiff was granted in forma
pauperis status, and summonses were issued for DTF and ACG, for service by the United States
Marshal=s Service (AUSMS@). The summonses were eventually returned unexecuted. (Dkt. #5,
#6.)

One of the summonses, for DTF, had been amended by plaintiff by crossing out the Paul

Road address for DTF, with a handwritten notation, ANew Address Found via Google.@ The new
address was given as AEMF Corporation,@ with a street address in Ithaca, New York. (Dkt. #6 at
1.) When that summons was returned unexecuted, it was accompanied by a note from the USMS
stating that EMF could not be served since it had not been named as a party in the case. (Dkt. #6
at 2.)
On December 3, 2015, the Court issued an order (Dkt. #7), directing plaintiff to show
cause why the complaint should not be dismissed for failure to prosecute. Plaintiff=s response
recited the problems he had experience with service of process, Abecause the company has a new
owner and a new name (EMF) ... .@ (Dkt. #8.)
The Court then issued an order giving plaintiff twenty days to file an amended complaint
against Athe properly named defendant, EMF Corporation ... .@ (Dkt. #9.) Plaintiff then filed an
amended complaint (Dkt. #11) on December 22, 2015, naming EMF as the sole defendant.
Aside from that change, however, the amended complaint is identical to the original, and
nowhere in the factual allegations does it mention EMF.
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EMF was duly served, and has answered the complaint. (Dkt. #13.) EMF=s answer
asserts several affirmative defenses, including the defense that EMF is not a proper party to this
action. Id. at 9.
EMF filed its motion for judgment on the pleadings on June 2, 2016. Plaintiff has filed a
one-page response in opposition, stating simply that he Acompletely disagree[s]@ with defendant
and that he Astand[s] firmly with every word and letter in [his] complaint ... .@ Dkt. #32.

II. Factual Background
Plaintiff=s factual allegations are confusingly presented, to say the least. He recites events
occurring on several dates, but they are not presented in chronological order. Instead, they
bounce back and forth from May 2, 2013 to April 2013, January 2012, June 2012, and so on.
Be that as it may, plaintiff alleges that he lost his job on May 7, 2013 Aafter 26 years,@ so
presumably his employment began in or around 1987. He states that in April 2013, A[t]he
company [which plaintiff never names] was Acquired by SYNCROLITE LLC of TEXAS ... .@
Syncrolite is nowhere else mentioned in the complaint, and has never been named as a
defendant. (Dkt. #11 at 1.) EMF admits in its answer, however, that Syncrolite is the parent
corporation of DTF, which according to EMF did purchase the assets of ACG. EMF Answer at
3.
After reciting various problems with harassment from coworkers and interactions with
various supervisors, plaintiff states, AMy Employment with DICHROTEC THIN FILM LLC was
Terminated Immediately@ on May 7, 2013. (Dkt. #11 at 2.) This is the first and only mention of
DTF in the complaint. As stated, EMF is not mentioned at all, nor for that matter is ACG.
In support of its Rule 12(c) motion, EMF relies principally on plaintiff=s failure to allege
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any facts against it, but EMF has also attempted to shed some light on the corporate history
involving ACG, DTF, and EMF. The Court will address below whether and to what extent I can
consider these allegations and supporting exhibits, but for now I summarize them for background
purposes.
According to defendant, plaintiff began his employment with ACG in 1987. After ACG
defaulted on its loan obligations to its secured creditor, People=s United Bank, the bank seized
ACG=s assets and sold them to DTF on April 17, 2013. EMF contends that DTF interviewed
plaintiff but declined to offer him a position with the company, and his employment terminated.
EMF did not come into the picture until June 26, 2014, when it purchased the assets of DTF. By
that time, of course, plaintiff was no longer employed by any of these companies.

DISCUSSION
I. Motions for Judgment on the Pleadings under Rule 12(c): General Principles
In deciding a Rule 12(c) motion for judgment on the pleadings, the court should Aapply
the same standard as that applicable to a motion under Rule 12(b)(6), accepting the allegations
contained in the complaint as true and drawing all reasonable inferences in favor of the
nonmoving party.@ Mantena v. Johnson, 809 F.3d 721, 727-28 (2d Cir. 2015) (quoting Burnette
v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999)).
AIn deciding a motion under Rule 12(c), the district court may consider only the contents
of the pleadings themselves, documents attached to the pleadings as exhibits or incorporated by
reference, and items of which judicial notice may be taken.@ Daniels v. Commissioner of Social
Security, 456 Fed.Appx. 40, 41 (2d Cir. 2012) (citing Samuels v. Air Transp. Local 504, 992
F.2d 12, 15 (2d Cir.1993). Additionally, where a document is not incorporated by reference, the
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district court may nevertheless consider it where the pleadings rely Aheavily upon its terms and
effect, thereby rendering the document integral to the [pleadings].@ DiFolco v. MSNBC Cable
LLC, 622 F.3d 104, 111 (2d Cir. 2010). Accord L-7 Designs, Inc. v. Old Navy, LLC, 647 F.3d
419, 422 (2d Cir. 2011); Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009).
In the case at bar, defendants have submitted copies of the asset purchase agreements
between People=s United Bank and DTF, and between DTF and EMF. See Dkt. #30-2. Those
documents reflect that when DTF purchased ACG=s assets from People=s United Bank, it did not
assume any liabilities of ACG, and that when EMF purchased DTF=s assets, the purchase
agreement excluded any liabilities to employees other than certain specified liabilities for wages
and compensation, which have no application here. See id. at 16 ' 2.2, 38-39 ' 1.3, and 57 '
6.3(c).

II. Application to Plaintiff=s Claims
Based on the pleadings, I conclude that plaintiff has failed to make out a claim against
EMF. EMF=s motion for judgment on the pleadings must therefore be granted.
It is not immediately apparent whether the Court can consider, on a 12(c) motion, the
documents submitted by EMF in support of its motion. Plaintiff does not appear to dispute the
truth of EMF=s assertions and evidence regarding the asset purchase agreements, and plaintiff
does reference Syncrolite=s acquisition of ACG.

But since EMF is not mentioned in the

complaint at all (apart from the caption), one can hardly say that the purchase agreement by
which EMF obtained DTF=s assets is referenced, incorporated in, or integral to the complaint.
That points, however, precisely to the defect in plaintiff=s claim against EMF. None of

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his allegations provided any basis for a claim against EMF. He does not allege that he was ever
employed by EMF, that EMF ever took any action against him, or that there is any basis upon
which EMF could be held liable for whatever wrongs were committed against plaintiff by ACG
or DTF.
It is well-settled that Athe existence of an employer-employee relationship is a primary
element of Title VII claims.@ Gulino v. New York State Educ. Dep=t, 460 F.3d 361, 370 (2d Cir.
2006); see also Eisenberg v. Advance Relocation & Storage, Inc., 237 F.3d 111, 113 (2d Cir.
2000). Absent a plausible allegation of such a relationship, a plaintiff=s Title VII claims must be
dismissed. See, e.g., Dillard v. SEU Local 32BJ, No. 15 Civ. 4132, 2016 WL 3566850, at *6
(S.D.N.Y. June 24, 2016).
Aside from that, there are simply no allegations here about EMF. EMF is merely named
as the defendant. It appears, from the above-recited history of this case, that plaintiff seeks to
impose liability on EMF as the Anew owner@ of DTF. But there is nothing in the pleadings to
indicate any basis for such successor liability. Such liability cannot be presumed, especially in
the absence of any factual allegations concerning EMF. See Barnett v. FreedomRoads, LLC, No.
11-cv-175, 2011 WL 3360472, at *2-*3 (D.Nev. Aug. 2, 2011) (dismissing discrimination claim
on the ground that A the allegation that FreedomRoads is either >the successor in interest to or has
as one of its subsidiaries= [plaintiff=s former employer] is both too conclusory and too
speculative@ to state a claim).

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CONCLUSION
Defendant=s motion for judgment on the pleadings (Dkt. #30) is granted, and the
complaint is dismissed.
IT IS SO ORDERED.

_______________________________________
DAVID G. LARIMER
United States District Judge
Dated: Rochester, New York
October 5, 2016.

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