Agapov v. UBIF Franchising Co.

Background

Dominick A. Agapov, proceeding without a lawyer, sued UBIF Franchising Co., identified in the opinion as his former employer. He alleged race discrimination and retaliation under Title VII of the Civil Rights Act of 1964 and the New York State Human Rights Law. He also asserted New York-law claims for breach of contract, unpaid commissions, and defamation. UBIF removed the case from state court based on federal-question jurisdiction.

The court had previously granted UBIF’s motion to dismiss without prejudice for failure to serve. After Agapov properly served UBIF, the court allowed UBIF to renew its motion. UBIF then moved to dismiss under Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7), arguing that some claims were untimely, that the New York State Division of Human Rights was a necessary party, and that Agapov had not plausibly pleaded his claims.

State-law discrimination and retaliation claims

The court held that it lacked subject-matter jurisdiction—the authority to hear the claims—over Agapov’s discrimination and retaliation claims under the New York State Human Rights Law. Agapov had filed a complaint about those claims with the New York State Division of Human Rights, which found no probable cause to believe that discrimination or retaliation occurred. Under New York Executive Law § 297(9), a person who files such a complaint generally may not bring the same claims again in court, unless an exception applies. Agapov did not allege that one of the listed exceptions applied. The motion was therefore granted as to those claims.

The court did not decide UBIF’s alternative argument that Agapov failed to name the Division of Human Rights as a necessary party.

Title VII discrimination claim

Agapov alleged that UBIF discriminated against him by moving him to the Mount Kisco Store, where he claimed the working conditions were unsafe and undesirable. He alleged that the move changed his hours, increased his commute and driving time, caused greater driver fatigue, and assigned him a van with an unpleasant smell and broken equipment. He also alleged that Black employees were treated differently.

The court concluded that these allegations plausibly showed an adverse employment action, meaning some harm to an identifiable term or condition of employment. The law did not require Agapov to show that the harm was significant or serious. The motion was denied as to his Title VII discrimination claim.

Title VII retaliation claim

Agapov alleged that UBIF fired him after he protested his relocation. The court explained that protected activity can include an informal complaint to management opposing discriminatory employment practices; a formal discrimination complaint is not required. Reading Agapov’s complaint favorably, the court inferred that his protest concerned the allegedly discriminatory decision to relocate him. The motion was denied as to his Title VII retaliation claim.

Breach-of-contract claim

Agapov argued that his manager’s text message stating that his work at the Mount Kisco Store was “not going to be a regular thing” created an implied contract. The court found that the text message, without more, did not establish that Agapov and his manager had reached an agreement about how long the substitution would last. Because the complaint did not adequately allege mutual agreement, a required element of an implied contract, the motion was granted as to the breach-of-contract claim.

Unpaid-commissions claim

Agapov alleged that he regularly received commissions, made sales in November 2021, and was denied commissions for those sales when UBIF treated the payments as a bonus instead. Although he did not identify the exact amount owed, he said he did not have access to his paystubs. The court held that these allegations were sufficient to support an unpaid-commissions claim at the motion-to-dismiss stage. The motion was denied as to that claim.

Defamation claim

Agapov alleged that UBIF made statements to investigators for the New York State Division of Human Rights portraying his workplace comments about the Kyle Rittenhouse court case as supporting an image of him as a white supremacist. The court accepted that he had adequately identified the alleged statements for purposes of the motion. It nevertheless held that statements made to the Division’s investigator during the investigation were protected by an absolute privilege and therefore could not support a defamation claim. The motion was granted as to the defamation claim.

Disposition

Judge Philip M. Halpern granted in part and denied in part UBIF’s motion to dismiss. The motion was granted as to Agapov’s New York State Human Rights Law discrimination and retaliation claims, breach-of-contract claim, and defamation claim. It was denied as to his Title VII discrimination and retaliation claims and unpaid-commissions claim. UBIF was directed to file an answer within 14 days of the order, after which the court would schedule an initial conference.