Opinion
5:18-cv-00870 (BKS/ATB)
02-14-2019
AMS E. BAKER, SR., Plaintiff, v. MEDICAL ANSWERING SERVICES, LLC, Defendant.
Appearances: Ams E. Baker, Sr. 117 Dablon Ct. Syracuse, NY 13202 Plaintiff pro se Subhash Viswanathan Bond Schoeneck & King, PLLC One Lincoln Center Syracuse, NY 13202 For Defendant
Appearances: Ams E. Baker, Sr.
117 Dablon Ct.
Syracuse, NY 13202
Plaintiff pro se Subhash Viswanathan
Bond Schoeneck & King, PLLC
One Lincoln Center
Syracuse, NY 13202
For Defendant Hon. Brenda K. Sannes, United States District Judge :
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Plaintiff Ams E. Baker, Sr., brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), alleging that Defendant Medical Answering Services, LLC discriminated against him because of his race. (Dkt. No. 1, at 2). The complaint alleges that Defendant terminated Plaintiff's employment and subjected him to unequal terms and conditions of employment based on race. (Id.). Plaintiff seeks compensatory and punitive damages, as well as costs and attorney's fees. (Id. at 5). On October 9, 2018, Defendant moved to dismiss Plaintiff's claims under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to allege an adverse employment action and failure to allege facts supporting a plausible inference of race discrimination. (Dkt. No. 15-6). Despite receiving an extension of time to respond to Defendant's motion, (see Dkt. No. 17), Plaintiff has not done so. For the reasons discussed below, Defendant's motion is granted. II. BACKGROUND
The order extending Plaintiff's response deadline, which was mailed to Plaintiff's last known address, was returned to the Court as undeliverable. (Dkt. Nos. 17, 18). In this District, all litigants have an ongoing obligation to keep their address information updated with both the Court and adversaries. L.R. 10.1(c)(2). A party's failure to do so is grounds for dismissal. L.R. 41.2(b); see Dansby v. Albany Cnty. Corr. Facility Staff, No. 95-cv-1525, 1996 WL 172699, at *1, 1996 U.S. Dist. LEXIS 4782, at *2 (N.D.N.Y. Apr. 10, 1996); Rivera v. Goord, No. 97-cv-308, 1999 WL 33117155, at *1, 1999 U.S. Dist. LEXIS 21922, at *1-2 (N.D.N.Y. Sept. 14, 1999). Accordingly, Plaintiff is advised that failure to keep his address information updated may result in dismissal of this action.
All facts, which are taken from the complaint and exhibits attached thereto, are assumed to be true for purposes of this motion. Faber v. Metro. Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011).
Plaintiff was an employee of Defendant Medical Answering Services in Syracuse, New York. (Dkt. No. 1, at 1). On the morning of September 29, 2017, Plaintiff's colleague, Jessica Morgan, "was on the edge" and "came to work to harass" Plaintiff. (Dkt. No. 1-2, at 1). Plaintiff "felt like a target." (Id.). Interrupting his work, (id.), she approached Plaintiff and accused him of "not using the proper greeting during a phone call," (Dkt. No. 1, at 3). Plaintiff had used the greeting "hello this is Ams are you calling to schedule or cancel a trip or is there something other I can assist you with." (Dkt. No. 1, at 3). Morgan told Plaintiff he could not use the word "something other" in the greeting, even though he had previously done so "for multiple phone calls" without being reprimanded. (Id. at 4). Morgan never indicated if she approached Plaintiff because of "coaching" or if it was another "type of approach." (Dkt. No. 1-2, at 1). During this interaction, however, Morgan told Plaintiff that "maybe I approached you wrongfully." (Id. at 1). She asked him "to meet in a room to discuss [the] matter," but "[t]he room ended up being the Human Resources office." (Id. at 1-2). In the office, with human resources representatives present, Morgan stated that Plaintiff had "to go home for the day." (Id. at 2). Plaintiff was "sent home for the rest of the day" and "was unable to return to work due to false allegations." (Dkt. No. 1, at 3). The day that Plaintiff was sent home, Morgan "never corresponed [sic] my behavi[or] with me," but "[n]ow" she accused him of "job insubordination and misconduct." (Dkt. No. 1-2, at 2). Plaintiff was also accused of "not providing proper paperwork for [a] doctor's appointment." (Dkt. No. 1, at 3).
It is not clear from the complaint what position Morgan held at Medical Answering Services.
III. STANDARD OF REVIEW
To survive a motion to dismiss, "a complaint must provide 'enough facts to state a claim to relief that is plausible on its face.'" Mayor & City Council of Balt. v. Citigroup, Inc., 709 F.3d 129, 135 (2d Cir. 2013) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "Although a complaint need not contain detailed factual allegations, it may not rest on mere labels, conclusions, or a formulaic recitation of the elements of the cause of action, and the factual allegations 'must be enough to raise a right to relief above the speculative level.'" Lawtone-Bowles v. City of New York, No. 16-cv-4240, 2017 WL 4250513, at *2, 2017 U.S. Dist. LEXIS 155140, at *5 (S.D.N.Y. Sept. 22, 2017) (quoting Twombly, 550 U.S. at 555). A court must accept as true all factual allegations in the complaint and draw all reasonable inferences in the plaintiff's favor. See EEOC v. Port Auth., 768 F.3d 247, 253 (2d Cir. 2014) (citing ATSI Communs, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007)). When deciding a motion to dismiss, a court's review is ordinarily limited to "the facts as asserted within the four corners of the complaint, the documents attached to the complaint as exhibits, and any documents incorporated in the complaint by reference." See McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). A complaint that has been filed pro se "must be construed liberally with 'special solicitude' and interpreted to raise the strongest claims that it suggests." Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013) (quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). "Nonetheless, a pro se complaint must state a plausible claim for relief." Id.
Copies of the unpublished cases cited in this decision will be mailed to Plaintiff because of his pro se status.
IV. DISCUSSION
Under Title VII, it is "an unlawful employment practice for an employer . . . 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)(1). A discrimination claim under Title VII is "subject to the burden-shifting evidentiary framework set forth in McDonnell Douglas." Littlejohn v. City of New York, 795 F.3d 297, 312 (2d Cir. 2015) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). As this motion is one to dismiss, the Court "focus[es] only on whether the allegations in the complaint give plausible support to the reduced prima facie requirements that arise under McDonnell Douglas in the initial phase of a litigation." Id. To defeat a motion to dismiss "a plaintiff must plausibly allege that (1) the employer took adverse action against him, and (2) his race, color, religion, sex or national origin was a motivating factor in the employment decision." Vega v. Hempstead Union Free School Dist., 801 F.3d 72, 87 (2d Cir. 2015). The plaintiff may meet the burden of showing a motivating factor "by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination." Id. A complaint is sufficient "if it pleads specific facts that support a minimal plausible inference of such discrimination." Doe v. Columbia University, 831 F.3d 46, 56 (2d Cir. 2016).
Defendant asserts that Plaintiff has failed to allege an adverse employment action and has not plausibly alleged facts from which a discriminatory motivation might be inferred. (Dkt. No. 15-6). Liberally construed in light of Plaintiff's pro se status, however, the complaint plausibly alleges employment termination. Plaintiff alleges that he was told to leave on September 29, 2017 and "was unable to return to work." (Dkt. No. 1, at 4; Dkt. No. 1-2, at 2). In the form complaint, Plaintiff checked the box "termination of employment" when asked what "the conduct complained of in this action involves." (Dkt. No. 1, at 2). Employment termination is an adverse employment action. Terry v. Ashcroft, 336 F.3d 128, 138 (2d Cir. 2003). Accordingly, Plaintiff has alleged facts plausibly indicating that he suffered an adverse employment action cognizable under Title VII.
Defendant argues that Morgan's verbal counseling of Plaintiff was not an adverse employment action, (Dkt. No. 15-6, at 6-7), but it is unnecessary for this Court to determine that issue.
Plaintiff has, however, failed to plausibly allege circumstances giving rise to an inference of discrimination. The complaint is devoid of any facts that directly evidence discriminatory intent or any facts from which discriminatory intent could be plausibly inferred. Although Plaintiff claims that he "felt like a target" and that Morgan "came to work to harass" him, he has not alleged facts plausibly supporting a connection between Morgan's actions and Plaintiff's race. (Dkt. No. 1-2, at 1). See Arroyo-Horne v. City of New York, No. 16-cv-03857, 2018 WL 4259866, at *15, 2018 U.S. Dist. LEXIS 151183, at *37 (E.D.N.Y. Sep. 5, 2018) (dismissing a claim where "Plaintiff fails to allege facts to support her claim that either alleged adverse employment action was discriminatory based on her race"). While an inference of discrimination may be drawn from a showing of disparate treatment—evidence that the Plaintiff was treated less favorably than similarly situated employees of different races—there are no such facts alleged here. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003).
Therefore, the complaint must be dismissed because Plaintiff has failed to allege any facts plausibly giving rise to an inference of discrimination. See Vega, 801 F.3d at 84.
Attached to the complaint is an "Incident Documentation Form" completed by Plaintiff stating that he has a "hostile work environment," (Dkt. No. 1-3, at 12), but nothing in the complaint indicates Plaintiff's desire to advance such a claim, (see Dkt. No. 1). And there are no facts supporting any such claim. See Littlejohn, 795 F.3d at 320-21 ("To establish a hostile work environment under Title VII . . . a plaintiff must show that 'the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.'" (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993))). --------
V. LEAVE TO AMEND
Defendant seeks dismissal of the complaint with prejudice. (Dkt. No. 15-6, at 9). In general, "[w]hen a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint." Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999); see also Fed. R. Civ. P. 15 (a) (2) ("The court should freely give leave when justice so requires."). Further, district courts should frequently provide leave to amend before dismissing a pro se complaint if amendment would not be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Here, because the Court cannot say that any amendment of the complaint would necessarily be futile, Plaintiff is granted leave to amend.
In any amended complaint, Plaintiff must clearly set forth the facts that give rise to his discrimination claim, including the dates, times, and places of the alleged underlying acts, and identifying each individual who committed each alleged wrongful act. Any such amended complaint will replace the existing complaint; it must be a wholly integrated and complete pleading that does not rely upon or incorporate by reference any pleading or document previously filed with the court. See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994) ("It is well established that an amended complaint ordinarily supersedes the original, and renders it of no legal effect." (internal quotation marks omitted)).
VI. CONCLUSION
For these reasons, it is hereby
ORDERED, that Defendants' motion to dismiss (Dkt. No. 15) is GRANTED; and it is further
ORDERED, that the complaint (Dkt. No. 1) is DISMISSED without prejudice; and it is further
ORDERED, that if Plaintiff wishes to proceed with this action, he must file an amended complaint within THIRTY (30) days from the filing date of this Memorandum-Decision and Order; and it is further
ORDERED, that if Plaintiff fails to file an amended complaint as directed above, the Clerk shall enter judgment indicating that this action is dismissed without prejudice for failure to state a claim upon which relief may be granted; and it is further
ORDERED, that the Clerk of Court shall serve a copy of this Memorandum-Decision and Order in accordance with the Local Rules along with copies of the unpublished decisions cited herein.
IT IS SO ORDERED. Dated: February 14, 2019
Syracuse, New York
/s/_________
Brenda K. Sannes
U.S. District Judge