UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------------------------------X ONWY UZOIGWE, Plaintiff, REPORT AND RECOMMENDATION 23 CV 7383 (HG)(LB) -against- CHARTER COMMUNICATIONS, LLC, Defendant. ---------------------------------------------------------------X BLOOM, United States Magistrate Judge:
Plaintiff Onwy Uzoigwe, proceeding pro se, commenced this employment-related action in New York Supreme Court, County of Queens on August 23, 2023. Defendant Charter Communications, LLC d/b/a Spectrum (hereinafter thereafter removed the action invoking 1
ECF No. 1. Plaintiff alleges defendant wrongfully terminated his employment with Charter and brings New York State law claims for breach of contract and negligence, and a retaliation claim under the New York City Administrative Code . Compl. ¶¶ 32 40 [ECF No. 1-1]. Defendant now moves to dismiss the claims against it pursuant to Federal Rule of Civil Procedure 12(b)(6). The Honorable Hector Gonzalez referred motion to me for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). For the reasons set forth below, it is respectfully recommended that motion to dismiss the complaint should be granted.
BACKGROUND - complaint are taken as true and all inferences are drawn in his favor. 2
ECF No. 1-1.
1 The case was initially removed to the Southern District of New York, which transferred the action to this District. 2 The Court also considers documents attached to the complaint incorporated by reference in the complaint, or integral to the complaint[,] United States ex rel. Foreman v. AECOM, 19 F.4th 85, 106 (2d Cir. 2021) (citations and
Plaintiff was employed as a field technician by Charter from November 15, 2015, to on or around January 18, 2020. Compl. ¶¶ 1, 16, 21. 3
During his employment, plaintiff was a member of Local Union No. 3 IBEW (hereinafter . Id. ¶ 2. On March 28, 2017, Local 3 went on strike. Id. ¶ 5. Plaintiff initially took part in the strike but returned to work on a full-time basis on November 17, 2017. Id. ¶¶ 6 9.
Upon his return to work, Charter provided plaintiff a letter confirming his . Id. ¶ 10. The letter states, Your assignment is permanent so that
you will continue in that assignment through and after the end of the strike by Local 3, and you Letter dated November 17, l -1 at 15 16]. Plaintiff signed the letter. Compl. ¶ 10. At the onboarding meeting that same day, plaintiff alleges he to which Aziz stated, six-step process before termination Id.; see also Plf [ECF No. 39-1].
Plaintiff continued to work for defendant for over two years. Compl. ¶¶ 11 15. Plaintiff alleges that throughout that time, he maintained the requisite skills and experience to qualify him for his position and received no written warnings or discipline. Id. ¶ 4 section), ¶ 34 . Nevertheless, on January 7, 2020, Charter called plaintiff
into a meeting and questioned him about allegedly stealing a meter and going to his home see also Compl. ¶¶ 16 18. Plaintiff stated that he went to his home , which Charter stated
internal quotation marks omitted), as well as factual allegations made in to dismiss, Walker v. Schult pro se opposing 3 Unless noted otherwise, the paragraph numbers cited herein refer to the numbered paragraphs in the com Background -1 at 5. violated company policy. Compl. ¶¶ 18, 21. Charter terminated plaintiff on January 18, 2020. Id. ¶ 21; see also
Plaintiff applied for New York State Unemployment Benefits ( UB ), which were initially denied but awarded on appeal. Compl. ¶¶ 26, 28. At his UB appeal hearing, plaintiff testified that Charter - in terminating plaintiff, one to step six. Id. ¶ 27. The UB decision entered on June 15, 2020 found that plaintiff bathroom[,] and that of denying him unemployment benefits. UB Decision, Ex. C [ECF no. 1-1 at 20].
In May 2023, plaintiff decided to bring a wrongful termination lawsuit through pictures on his phone and [finding] a picture [he had taken] of the contract he [had] signed
with Charter. 4
Compl. ¶ 30. On August 23, 2023, plaintiff filed the instant complaint. ECF No. 1. Plaintiff seeks back pay and other compensatory damages, as well as injunctive relief. Compl. ¶ 40.
PROCEDURAL HISTORY Plaintiff filed his complaint in New York Supreme Court, Queens County. ECF No. 1. Defendant removed the action to the Southern District of New York on diversity grounds. Id. The case was transferred to this District on October 3, 2023. Plaintiff moved to remand the case to state court on October 6, 2023. ECF No. 10. The Court denied the motion. ECF No. 26; see also ECF reconsideration at ECF No.
32).
4 Plaintiff refers to the 2017 letter as the contract. Defendant now moves to dismiss the complaint. Def. Mot. [ECF No. 24]. Plaintiff opposes the motion, Plf. Opp. [ECF Nos. 38 39], and defendant has replied. Def. Reply [ECF No. 41].
LEGAL STANDARD Defendant moves to dismiss the claims against it pursuant to Rule 12(b) of the Federal Civ. P. 12(b)(6); On a motion to dismiss pursuant to Rule 12(b)(6), the
Court must accept all factual allegations in the complaint as true and draw all reasonable inferences Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). ed in a complaint Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A plaintiff must allege facts that
Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). nudge[] their Twombly, 550 U.S. at 570.
In deciding a motion to dismiss, pro se complaints liberally, even as [it] examine[s] such complaints for factual allegations sufficient to meet the Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citation omitted). -established that the submissions of a pro se litigant must be construed liberally and Meadows v. United Servs., Inc., 963 F.3d 240, 243 (2d Cir. 2020) (citation omitted); see also Littlejohn v. City of New York, 795 F.3d 297, 306 (2d Cir. 2015) On a motion to dismiss, all factual allegations in the complaint are accepted as true and all inferences are drawn in the plaintiff's favor. . In addition to the complaint, the Court may consider documents attached to the complaint, incorporated by reference therein Foreman, 19 F.4th at 106 (quoting DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010). pro se party in his papers Antrobus v. City of New York, No. 19-CV-6277, 2021 WL 848786, at *3 (E.D.N.Y. Mar. 5, 2021) 5
(citing Walker, 717 F.3d at 122 n.1). DISCUSSION I. Retaliation and Negligence Claims
Defendant seeks to dismiss , arguing that these claims are time barred. must apply the statutes of limitations of the forum state. Stuart v. Am. Cyanamid Co., 158 F.3d 622, 626 (2d Cir. 1998) (citing Guar. Tr. Co. v. York, 326 U.S. 99, 108 09 (1945)). New York s statutes of limitations apply for .
6
Compl. ¶ 40. Under New York State law, a personal injury claim based on negligence is subject to a three-year statute of limitations. New York Civil Practice § 214(4); see also Spinnato v. Unity of Omaha Life Ins. Co., 322 F. According to section 214 of the [CPLR], the statute of
5 The Clerk of Court is respectfully directed to send plaintiff the attached copies of all the unreported cases cited herein. 6 Plaintiff CPLR § 1411 Compl. ¶ 40. claims. The Court therefore arising under New York common law. limitations for a negligence ). Such a claim accrues upon the date of even if the plaintiff is unaware that he or she has a cause of action at the time of injury[.] Kampuries v. Am. Honda Motor Co., 204 F. Supp. 3d 484, 490 91 (E.D.N.Y. 2016) (citations, internal quotation marks, and alterations omitted). on January 18, 2020, the date plaintiff was terminated by defendant. 7
Thus, plaintiff had until January 18, 2023 to file his claim. As plaintiff did not commence this action until August 23, 2023, his negligence claim is time barred.
Plaintiff also time barred. Plaintiff brings his retaliation claim -1262. Under New York City law, the statute of limitations for a retaliation claim is two years from the date plaintiff Code § 20-1211. his termination, January 18, 2020. On that date, he knew or should have known that his termination may have been retaliatory. Accordingly, January 18, 2022, and his retaliation claim is time barred.
Plaintiff argues that his negligence and retaliation claims were equitably tolled. This Court disagrees. Plaintiff alleges that he forgot all about the 2017 letter 8
and only he could bring this action after finding a photo of the letter on his phone in May 2023. Compl. ¶¶ 30 31. However, p the 2017 letter on his phone does not toll the accrual of either claim. Keitt v. N.Y.C., 882 F. Supp. 2d 412, 437 (S.D.N.Y. 2011)
7 T and thus the date of accrual is the date employment ended, not the date he stopped receiving unemployment benefits, as plaintiff incorrectly states. See Mem. of Law at 10 [ECF No. 39]; see also Eagleston v. Guido, 41 F.3d 865, 871 (2d Cir. 1994) (( [T]he proper focus is on the time of the discriminatory act, not the point at which the consequences (quoting Chardon v. Fernandez, 454 U.S. 6, 8 (1981)) (emphasis in original)). 8 Plaintiff also alleges that the 2017 letter was a contract giving [plaintiff] a permanent assignment and thus forms the basis for his claims. Compl. ¶¶ 10 n.1, 30; see also . at 15. ( argument that his claims accrued at the time of discovery that he had grounds for such a suit because accrual does not depend on (citation, internal quotation marks, and alterations
omitted)); see also Kantor-Hopkins v. Cyberzone Health Club, No. 06-CV-643, 2007 WL [P]ro se status and ignorance of the law do not merit of the statute of limitations (citation and internal quotation marks omitted)).
The Court is likewise unpersuaded by p that various New York State Executive Orders s
9 enacted during the COVID- the applicable statutes of limitations here. Plf. Mem. of Law at 10 [ECF No. 39]. On March 7, 2020, Governor Cuomo issued Executive Order 202.8 declaring -19
d from the date of this executive order until April 19, 2020. ork State Executive Order 202.8. This EO [EOs], with the last extension ending on November 3, 2020, for a total period of 228 days. Barry v. Royal Air Maroc, No. 21-CV-8481, 2022 WL 3215050, at *4 (S.D.N.Y. July 8, 2022), report and recommendation adopted, No. 21- CV-8481, 2022 WL 3214928 (S.D.N.Y. Aug. 9, 2022) (citation and internal quotation marks omitted). While some courts EO 202.8 to mean a 228-day extension on limitations periods for all claims, see, e.g., Bell v. Saunders, No. 20-CV-256, 2022 WL 2064872, at *5 (N.D.N.Y. June 8, 2022) (finding the for 228 days), most courts, including in this District, have found that EO 202.8 and subsequent EOs only applied
9 Mem. of Law at 10. However, Exhibit F is a memorandum and order from March 2016, which does not include or refer to any EO issued by New York State in 2020. See F [ECF No. 39-9]. to limitations periods for claims that would have otherwise expired during the time when these EOs were in effect, between March 20, 2020 and November 3, 2020 . 10 See Loeb v. Cnty. of Suffolk, No. 22-CV-6410, 2023 WL 4163117, at *3 (E.D.N.Y. June 23, 2023) ( did not expire during the emergency period and thus his claims were time barred); see also Barry, 2022 WL 3215050, at *4 (( courts have held that [EO between March 3 and November 3, 2020, but did not lengthen periods that expired after (emphasis in original)). This Court adopts the majority view of these EOs and their effect on
limitations periods that expired during the emergency period.
Accordingly, because retaliation and negligence claims did not expire during the emergency period, any tolling under EO 202.8 and subsequent EOs does not apply. While the Court acknowledges y Mem. of Law at 9, the purpose of these EOs during a time when courthouses were closed to all but essential matters, and litigants faced extraordinary difficulties as a result. Loeb, 2023 WL 4163117, at *3. The EOs did not [all] Id.
10 Some courts define Barry, 2022 WL period to which it applied, and thus extended limitations periods that would otherwise have expired between March 3, 2020 and November 3, 2020, but did not lengthen periods that expired after Other courts define until the end date of the any claims expiring during the suspension must be filed immediately after the end of the suspension period. Brash v. Richards, 195 A.D.3d 582, 582 83, 585 ( 2021) (finding that the EOs tolled rather than suspended until November 3, 2020. ). is the more appropriate term for defining the effect of these EOs, the result here is the same: The EOs merely stopped the running of any applicable period of limitations for the 228 day period of time between March 3, 2020 and November 3, 2020. Contrary to plaintiff's claims, the executive orders did not extend everyones statute of limitations period for an additional 228 Cruz v. Guaba, 74 Misc. 3d 1207(A) (N.Y. Sup. Ct. 2022).
In sum, because plaintiff did not file the instant complaint until August 23, 2023,
these claims are time barred.
II. Breach of Contract Claim
arguing that the 2017 letter that not, taken together, constitute a valid employment contract. Defendant further argues that even if plaintiff could allege the existence of a contract, plaintiff remained an at-will employee. Mem. of Law at 1 2, 7. Plaintiff alleges that contract with [defendant] that stated his
defendant breached the alleged contract by terminating him without good cause. Compl. ¶ 35.
To allege a breach of contract claim under New York Law, plaintiff must demonstrate (1) the existence of a contract, (2) performance by [plaintiff as] the party seeking recovery, (3) nonperformance by [defendant], and (4) damages attributable to the breach. Kramer v. N.Y.C. Bd. of Educ., 715 F. Supp. 2d 335, 356 (E.D.N.Y. 2010) (quoting RCN Telecom Servs., Inc. v. 202 Centre St. Realty LLC 51 (2d Cir. 2005) (summary order)). New York is an employment-at-will state, 11
and thus employees hired for an indefinite or unspecified term presumed to be at will and their employment freely terminable by either party at any Brown v. Daikin America Inc., 756 F.3d 219, 231 (2d Cir. 2014)
11 Plaintiff states in a footnote that In support of this statement, plaintiff cites a decision from a state court in California. California case law is irrelevant to this Co Furthermore, while New York City recently enacted a Wrongful Discharge Law -food chains New York State is otherwise an -will Rest. L. Ctr. v. City of New York, 90 F.4th 101, 105 (2d Cir. 2024) (upholding the City law as constitutional). (citation omitted). An at-will-employment relationship is indisputabl in that the employee agrees to perform services for the employer in exchange for compensation. Pierre v. Cap. One Fin. Corp., No. 21-CV-30, 2022 WL 801321, at *5 (E.D.N.Y. Mar. 16, 2022), appeal dismissed sub nom. Pierre v. Fairbank, No. 22-794, 2022 WL 2677364 (2d Cir. July 6, 2022) (quoting , 77 F. Supp. 2d 478, 479 (S.D.N.Y. 1999)).
Here, plaintiff alleges that Charter employed him to work as a field technician in November 2015. Compl. ¶ 1. He alleges that after participating November 2017, he resumed working for Charter on a full-time basis from November 17, 2017
until his termination in January 2020. Id. ¶¶ 1, 5 6, 9, 21. , as the Court must on a motion to dismiss, the question is not whether a valid employment contract existed between the parties, but whether there were terms included in the contract that [ed] an right to terminate at will. Hodge v. Abaco, LLC, 825 F. Appx 46, 47 (2d Cir. 2020) (summary order) (citation and internal quotation marks omitted).
To rebut the presumption of at-will employment at the motion to dismiss stage, a breach of contract claim 12
must allege that an express written policy limiting the rights of discharge exists, (2) the employer (or one of its authorized representatives) made the employee aware of this policy, and (3) the employee detrimentally relied on the policy in accepting or conti Baron v. Port Auth. of New York & New Jersey, 271 F.3d 81, 85 (2d Cir. 2001) (citation omitted); cf. Stamelman v. Fleishman-Hillard, Inc., No. 02-CV-8318, 2003
12 In addition to a wrongful termination claim based on a breach of contract, an at-will employee may bring a claim for wrongful termination if they their termination. , 216 F.3d 258, 262 (2d Cir. 2000). Plaintiff does not allege that his termination was unconstitutional or that there was a statute limiting his termination by defendant. WL 21782645, at *4 (S.D.N.Y. July 31, 2003) (stating that to rebut the presumption of at-will (1) [were] orally assured that the prospective employer only fired for just cause; (2) signed an employment application that incorporated the oral assurance; (3) rejected other offers of employment in reliance on the assurance; and (4) [were] instructed to proceed in strict compliance with the express employer policy that employees be discharged only for just cause. Weiner v. McGraw-Hill Inc., 57 N.Y. 2d 458, 465 66 (1982))). his is a difficult pleading burden[,] in the written policy do not give rise to a breach of
contract claim. Baron, 271 F.3d at 85 n.2 (citations and internal quotation marks omitted).
Here, the 2017 letter does not constitute a written express policy limiting at-will employment status. The letter states permanent through and after the end of the strike by Local 3. 2017 Letter [ECF No. 1-1 at 16]. This wording suggests that and thus presumably at-will. Brown, 756 F.3d at 231. Moreover, given plaintiff signed the letter in the middle of a union strike, it is worth noting that during a strike has been interpreted by the Supreme Court as ting] the employer who prevails in [the] ion. Belknap, Inc. v. Hale, 463 U.S. 491, 492 93 (1983 Where employees have engaged in an economic strike, the employer may hire permanent replacements whom it need not discharge even if the strikers offer to return to work unconditionally Nothing in the caselaw suggests that replacement workers hired during a strike maintain their employment for a lifetime indefinite duration
Thus, the 2017 letter, standing alone, employment was at-will. Plaintiff does not identify any other written express policy rebutting this at-will presumption. Indeed, opposition includes from defendant, dated February 15, 2019, that more clearly states [Charter] may terminate your employment at any time for any reason not prohibited by law or the collective bargaining agreement between [Charter] ECF No. 39-3 at 8]. Plaintiff also includes pages from a col defendant and Local 3, though the CBA appears to have been in effect from 2009 to 2013 and
likely not 13
., Ex. A [ECF No. 39-4 at 18 51]. Even if a plaintiff does not allege how provisions might have applied to the terms of his individual employment. 14
Plaintiff fails to allege that the CBA or some other express writing limited to discharge an
employee, such that plaintiff could only be terminated for good cause.
Similarly, the - by Vice President Aziz, standing alone, does not modify -will status. Plaintiff does not point to any express written policy incorporating assurance into employment contract. See Stamelman, 2003 WL 21782645, at *4 (S.D.N.Y. July 31, 2003) . Furthermore,
at his UB appeal hearing about a six-step process is irrelevant. The hearing
13 The CBA states, inter alia right to discharge immediately any employee for inefficiency, insubordination or any other just cause, subject to the right of the Union to demand arbitration as provided f employee, the Company will notify the Business Representative of the Union or the Shop Steward for the purpose of [ECF No. 39-4 at 30]. 14 laims Lever v. Entergy Nuclear Operations Inc., No. 15-CV-3327, 2016 WL 1627619, at *2 3 (E.D.N.Y. Apr. 22, 2016) involved interpretation of rights and responsibilities under a CBA and thus was preempted by the LMRA). of contract claims were subject to interpretation of the CBA, it would likely be preempted by Section 301 of the LMRA and thus six-month statute of limitations. Id. at *4 (dismissing with prejudice LMRA § 301 claim as time barred). was limited to the question of whether plaintiff was entitled to unemployment benefits and has no bearing on whether plaintiff has sufficiently alleged a breach of contract claim in this case. 15
See N.L.R.B. v. Kathleens Bakeshop, LLC, No. 02-4673, 2003 WL 22221353, at *1 (2d Cir. Sept. 26, 2003) (summary order) (holding that a determination by unemployment appeals board was irrelevant to the c decision of whether plaintiff was wrongfully discharged).
It is not for the Court to decide whether on this record, defend purported reason for plaintiff was justified or appropriate. fails to identify any express written policy, or oral assurance incorporated into a written policy, that would create an -in- at-will employment status. See Hunter v. Kaufman Enterprises, Inc., No. 09-CV-5540, 2011 WL 3555809, at *5 (E.D.N.Y. Aug. 8, 2011) (finding plaintiff was an at-will employee and dismissing his breach of contract claim). Without any express contractual limitation altering at-will employment status, plaintiff cannot state a breach of contract claim. P d attached filings, even considered together and liberally construed, fail to rebut the presumption of employment-at-will. Plaintiff therefore fails to state a plausible claim for breach of contract. Accordingly, the Court should grant dismiss.
15 misunderstanding regarding the significance of the UB decision. Plaintiff was initially denied unemployment benefits at a clearly terrible time for him, and in his words, based on a pretext because he was suspected of stealing a meter. Compl. ¶ 38. It does not appear that defendant gave plaintiff a hearing or an opportunity to be heard regarding its suspicion of the stolen meter. Instead, eleven days later, defendant summarily terminated plaintiff for going home during his shift to use the bathroom. Compl. ¶ 21. Plaintiff had already a manager [] stomach issues he was having in November 2019 . Id. ¶ 38. Nevertheless, when plaintiff applied for UB, defendant tri[ed not] to allow his unemployment claim. Id. ¶ 29. Only on appeal six months later did the administrative judge find that actions did not rise to the level of a qualifying misconduct. Id. ¶ 34. Plaintiff thus had to wait more than six months during a global pandemic to receive unemployment benefits.
III. Leave to Amend
The Court is mindful that although leave to amend a complaint should be freely given it is not always appropriate. Williams v. Citigroup, Inc., 659 F.3d 208, 213 14 (2d Cir. 2011) (per curiam). Specifically, the Court should deny leave to amend when it would be, among other reasons, futile. See Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002) (noting that leave to amend may be denied for undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies, undue prejudice to the opposing party, or futility of amendment). Leave to amend is futile where a plaintiff cannot, in good faith, identified by the court and allege facts sufficient to support the claim. (summary order) (citing Joblove v. Barr Labs., Inc., 466 F.3d 187, 220 (2d Cir. 2006)).
Because any amendment to those claims would be futile. Therefore, I respectfully recommend that leave to amend should be denied as to those claims. Although it seems like a very unlikely long-shot, I recommend that p breach of contract claim should be dismissed without prejudice with leave to amend. See Ahlers v. Rabinowitz, 684 F.3d 53, 66 (2d Cir. 2012) (noting that a pro se plaintiff should be nal quotation marks omitted)). If this Report
is adopted, plaintiff should be given thirty (30) days to file an amended complaint regarding his breach of contract claim.
CONCLUSION Accordingly, I respectfully recommend that motion to dismiss complaint should be granted for the reasons stated above.
FILING OF OBJECTIONS TO REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court. Any request for an extension of time to file objections must be made within the fourteen-day period. Failure to file a timely objection to this Report generally waives any further judicial review. Marce , 293 F.3d 42 (2d Cir. 2002); , 892 F.2d 15 (2d Cir. 1989); see Thomas v. Arn, 474 U.S. 140 (1985). SO ORDERED. /S/ LOIS BLOOM United States Magistrate Judge Dated: March 18, 2024 Brooklyn, New York
