Hafizov v. BDO USA, LLP
1:22-cv-08853
S.D.N.Y.Nov 14, 2022Background
- Plaintiff Rinat Hafizov alleges he was terminated in retaliation after complaining about discrimination and retaliation by his supervisor, Kathryn (Ms.) Bernier.
- The Complaint describes Bernier’s treatment of others (notably employee Dennis Sweeney), alleges Bernier disparaged Sweeney for filing complaints, and asserts similarities between Sweeney’s lawsuit and Hafizov’s allegations (same supervisor, same office/group, alleged post‑termination retaliation after counsel retained).
- Defendants moved (via a pre‑motion letter) to strike certain complaint allegations—principally references to Sweeney and other “me‑too” allegations—arguing they are immaterial or prejudicial.
- Plaintiff opposed, arguing the allegations are relevant to show Bernier’s animus, a pattern/modus operandi of retaliation, and are admissible or at least permissible at the pleading stage.
- The district court did not resolve the merits of the motion to strike; instead it set a full briefing schedule (Plaintiff’s response due Dec. 2, 2022; Defendant’s reply due Dec. 9, 2022).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Relevance of allegations about other employees (Sweeney) | Relevant to show retaliatory motive, animus, and similar treatment | Immaterial and prejudicial; should be stricken | Court did not strike; ordered full briefing (motion unresolved) |
| Admissibility of "me‑too" evidence from separate litigation | "Me‑too" allegations are admissible/relevant to show pattern and decisionmaker animus | Such allegations are improper because they arise from other actions and may be prejudicial | Court declined to decide now; allowed briefing and preserved issue for later resolution |
| Use of allegations to show corporate modus operandi (post‑termination retaliation) | Allegations of other retaliatory acts support claim of corporate practice and causation | Defendants argue they are irrelevant to Hafizov’s specific claims | Court left issue for full briefing; no striking at this stage |
| Appropriateness of a motion to strike at the pleading stage | Motion to strike is premature; evidentiary questions should await fuller development | Seeks early narrowing of pleadings by striking certain factual allegations | Court set schedule for briefing rather than granting strike; motions to strike disfavored per cited authority |
Key Cases Cited
- In re Merrill Lynch & Co., Inc. Research Reports Sec. Litig., 218 F.R.D. 76 (S.D.N.Y. 2003) (motions to strike are disfavored)
- Oram v. SoulCycle LLC, 979 F. Supp. 2d 498 (S.D.N.Y. 2013) (plaintiff need not conform allegations to defendant's stylistic preferences)
- Moy v. Adelphi Inst., 866 F. Supp. 696 (E.D.N.Y. 1994) (courts should avoid resolving evidentiary questions at pleading stage)
- Gaffney v. Dep’t of Info. Tech., 579 F. Supp. 2d 455 (S.D.N.Y. 2008) (other employees’ adverse treatment can support retaliation claim)
- Saulpaugh v. Monroe Cnty. Hosp., 4 F.3d 134 (2d Cir. 1993) (evidence of similar treatment of others can support retaliation verdict)
- Taitt v. Chemical Bank, 849 F.2d 775 (2d Cir. 1988) (causation in retaliation can be shown indirectly via similar treatment of coworkers)
- DeCintio v. Westchester Cnty. Med. Ctr., 821 F.2d 111 (2d Cir. 1987) (retaliation may be shown through disparate treatment of fellow employees)
- Sprint v. Mendelsohn, 552 U.S. 379 (2008) (Supreme Court recognized that "me‑too" evidence can be admissible)