Opinion
5:23-CV-0490 (GTS/ML)
01-17-2024
JERAMIAH BROWN, Plaintiff, v. CHARTER COMMC'NS HOLDING CO, LLC, Defendant.
JERAMIAH BROWN Plaintiff, Pro Se
APPEARANCES:
OF COUNSEL:
JERAMIAH BROWN Plaintiff, Pro Se
ORDER AND REPORT-RECOMMENDATION
MIROSLAV LOVRIC, UNITED STATES MAGISTRATE JUDGE
The Clerk has sent this pro se Complaint (Dkt. No. 1) together with (1) an application to proceed in forma pauperis (Dkt. No. 2), and (2) a motion to stay the case pending arbitration (Dkt. No. 4) filed by Jeramiah Brown (“Plaintiff”) to the Court for review. For the reasons discussed below, I grant Plaintiff's in forma pauperis application (Dkt. No. 2), deny Plaintiff's motion for a stay of the case (Dkt. No. 4), and recommend that Plaintiff's Complaint (Dkt. No. 1) be (1) accepted in part for filing, and (2) dismissed in part with leave to amend.
I. BACKGROUND
Construed as liberally as possible, Plaintiff's Complaint-which was completed on a form complaint alleging violations of Americans with Disabilities Act (“ADA”)-alleges that his civil rights were violated by Charter Communications Holding Co., LLC (“Defendant”). (See generally Dkt. No. 1.)
The court must interpret pro se complaints to raise the strongest arguments they suggest. Soto v. Walker, 44 F.3d 169, 173 (2d Cir. 1995) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)).
More specifically, Plaintiff alleges that on December 20, 2021, he sustained a physical injury at work because his supervisor, James Garrison, intentionally stepped in front of Plaintiff while walking. (Dkt. No. 1 at 2.) Plaintiff alleges that some time in December 2021, Mr. Garrison “smacked [Plaintiff] in the Face with a tablet,” which resulted in Plaintiff chipping a tooth. (Id. at 4.) Plaintiff alleges that he was born with TAR syndrome (thrombocytopenia-absent radius syndrome). (Id. at 2.)
Plaintiff alleges that Mr. Garrison refused to document Plaintiff's injury on an incident report. (Id. at 3.) Plaintiff alleges that on January 25, 2022, Dan Higham, an employee in Defendant's human resources department, completed an incident report regarding the injury that Plaintiff sustained at work in December 2021, but refused to accurately document or provide requested mental health services to Plaintiff. (Id.)
However, it is unclear whether the injury Plaintiff refers to is the chipped tooth from the tablet or the injuries he sustained when Mr. Garrison stepped in front of Plaintiff while walking.
Plaintiff alleges that on March 3, 2022, he had a telephone conversation with Mr. Higham during which, Plaintiff requested ADA accommodations to work from home and transfer jobs. (Id.) The Complaint alleges that Mr. Higham agreed to Plaintiff's requested accommodations if Plaintiff provided an ADA “Document filled out by [his] Primary Care Physician.” (Dkt. No. 1 at 3, 5.) Plaintiff alleges that on March 14, 2022, he provided the requested ADA document from his primary care physician, Dr. Maldonado. (Dkt. No. 1 at 5.) Plaintiff alleges that on March 14, 2022, Mr. Higham called him, intimidated him, and stated that Defendant refused to accommodate Plaintiff because Mr. Garrison accurately documented Plaintiff's work injury. (Id.)
The Complaint alleges that on March 25, 2022, Sharon Lewis, a human resource director for New York, and Mr. Higham forged an unauthorized document for an unpaid leave of absence from March 14, 2022, to April 25, 2022. (Dkt. No. 1 at 5.)
Plaintiff alleges that he has been out of work since March 14, 2022, because Mr. Higham denied his ADA accommodations to work from home. (Id.)
Plaintiff alleges that in April 2022, he reported to Defendant's hotline that Mr. Higham created a hostile work environment for Plaintiff. (Id.) Plaintiff alleges that Mr. Higham retaliated against Plaintiff for his ethic reports and ADA accommodation requests. (Id.)
Plaintiff alleges that Defendant's employees “hacked into [his] work email and attempted to change the password.” (Id. at 7.)
Plaintiff alleges that Mr. Garrison “jeopardized [Plaintiff]'s life and health by” assigning Plaintiff the task of contacting the occupants of addresses that were “already assigned to other Spectrum Employees that attempted to sell the brand.” (Dkt. No. 1 at 8.)
Plaintiff alleges that Mr. Garrison “stole $950.00 from [Plaintiff]'s payroll paycheck on 12/12/2021 - The money was returned on 04/04/2022.” (Dkt. No. 1 at 8.)
The Complaint alleges that on December 27, 2022, Robert Eaton, a senior human resource generalist for Defendant, e-mailed Plaintiff regarding a return to work that “insinuated that accommodations would be accommodated.” (Dkt. No. 1 at 8.) Plaintiff alleges that Mr. Eaton refuses to accommodate Plaintiff by permitting him to work from home. (Id.)
Plaintiff alleges that he received an e-mail from Defendant thanking him for expressing interest in a position but stating that he would no longer be participating in the selection process because he had not responded to attempts to contact him. (Dkt. No. 1 at 8.) However, Plaintiff alleges that he “made numerous attempts to contact” Defendant regarding the position. (Id.)
Based on these factual assertions, Plaintiff appears to assert the following four causes of action (1) a claim that Plaintiff was discriminated against in violation of Title I Americans with Disabilities Act (“ADA”); (2) a claim that Plaintiff was retaliated against in violation of Title V of the ADA; (3) a claim of discrimination pursuant to Sections 501 and 503 of the Rehabilitation Act; and (4) a claim that Plaintiff endured a hostile work environment in violation of Title VII. (See generally Dkt. No. 1.)
As relief Plaintiff seeks $90,000.00 for back wages and reinstatement of his job with a transfer and the ADA accommodation to work from home as a business call center representative. (Dkt. No. 1 at 4.)
II. PLAINTIFF'S APPLICATION TO PROCEED
IN FORMA PAUPERIS
“When a civil action is commenced in a federal district court, the statutory filing fee, currently set at $402, must ordinarily be paid. 28 U.S.C. § 1914(a). A court is authorized, however, to permit a litigant to proceed in forma pauperis status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). After reviewing Plaintiff's in forma pauperis application (Dkt. No. 2), the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's application to proceed in forma pauperis is granted.
The language of that section is ambiguous because it suggests an intent to limit availability of in forma pauperis status to prison inmates. See 28 U.S.C. § 1915(a)(1) (authorizing the commencement of an action without prepayment of fees “by a person who submits an affidavit that includes a statement of all assets such prisoner possesses”). The courts have construed that section, however, as making in forma pauperis status available to any litigant who can meet the governing financial criteria. Hayes v. United States, 71 Fed.Cl. 366, 367 (Fed. Cl. 2006); Fridman v. City of N.Y., 195 F.Supp.2d 534, 536 n.1 (S.D.N.Y. 2002).
Plaintiff is reminded that, although his application to proceed in forma pauperis has been granted, he is still required to pay fees that he may incur in this action, including copying and/or witness fees.
III. LEGAL STANDARD FOR INITIAL REVIEW OF THE COMPLAINT
“Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . the action . . . (i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2).
In order to state a claim upon which relief can be granted, a complaint must contain, inter alia, “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The requirement that a plaintiff “show” that he or she is entitled to relief means that a complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Determining whether a complaint states a plausible claim for relief . . . requires the . . . court to draw on its judicial experience and common sense....[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not shown-that the pleader is entitled to relief.” Iqbal, 556 U.S. at 679 (internal citation and punctuation omitted).
“In reviewing a complaint . . . the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor.” Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (citation omitted). However, “the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678.
Courts are “obligated to construe a pro se complaint liberally.” Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009); see also Nance v. Kelly, 912 F.2d 605, 606 (2d Cir. 1990) (per curiam) (reading the plaintiff's pro se complaint “broadly, as we must” and holding that the complaint sufficiently raised a cognizable claim). “[E]xtreme caution should be exercised in ordering sua sponte dismissal of a pro se complaint before the adverse party has been served and [the] parties . . . have had an opportunity to respond.” Anderson v. Coughlin, 700 F.2d 37, 41 (2d Cir. 1983).
The Court, however, also has an overarching obligation to determine that a claim is not legally frivolous before permitting a pro se plaintiff's complaint to proceed. See, e.g., Fitzgerald v. First East Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000) (holding that a district court may sua sponte dismiss a frivolous complaint, notwithstanding the fact that the plaintiff paid the statutory filing fee). “Legal frivolity . . . occurs where ‘the claim is based on an indisputably meritless legal theory [such as] when either the claim lacks an arguable basis in law, or a dispositive defense clearly exists on the face of the complaint.” Aguilar v. United States, 99-MC-0304, 99-MC-0408, 1999 WL 1067841, at *2 (D. Conn. Nov. 8, 1999) (quoting Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998)); see also Neitzke v. Williams, 490 U.S. 319, 325 (1989) (“[D]ismissal is proper only if the legal theory . . . or factual contentions lack an arguable basis.”); Pino v. Ryan, 49 F.3d 51, 53 (2d Cir. 1995) (“[T]he decision that a complaint is based on an indisputably meritless legal theory for purposes of dismissal under section 1915(d), may be based upon a defense that appears on the face of the complaint.”).
IV. ANALYSIS
In addressing the sufficiency of a plaintiff's complaint, the court must construe his pleadings liberally. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008). Having reviewed Plaintiff's Complaint with this principle in mind, I recommend that a response be required to one of Plaintiff's claims and that other claims be dismissed.
A. Plaintiff's Claims Pursuant to the ADA
The ADA “forbids discrimination against persons with disabilities in three major areas of public life: employment, which is covered by Title I of the statute; public services, programs, and activities, which are the subject of Title II; and public accommodations, which are covered by Title III.” Tennessee v. Lane, 541 U.S. 509, 516-17 (2004). In addition, “Title V of the ADA, sometimes referred to as the ‘retaliation provision,'” prohibits retaliation against individuals “engaged in activity protected by the ADA.” Griffiths v. Saint Josephs Hosp., 22-CV-0199, 2022 WL 1271533, at *3 n.5 (N.D.N.Y. Apr. 5, 2022) (Dancks, M.J.) (citing Chiesa v. New York State Dep't of Labor, 638 F.Supp.2d 316, 323 (N.D.N.Y. 2009) (Hurd, J.)), report and recommendation adopted by, 2022 WL 1265761 (N.D.N.Y. Apr. 28, 2022) (Hurd, J.).
1. Title I
Section 12112 of the ADA provides:
No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.42 U.S.C. § 12112(a). Title I of the ADA provides a remedy for disability discrimination committed by “an employer, employment agency, labor organization, or joint labor-management committee.” 42 U.S.C. § 12111(2).
The ADA further states that the term “discriminate” as used in the statute includes:
not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.42 U.S.C. § 12112(b)(5)(A). “A discrimination claim may therefore be brought under Title I of the ADA for failure to accommodate.” Penird v. Better, 19-CV-1146, 2021 WL 3077853, at *8 (N.D.N.Y. July 21, 2021) (D'Agostino, J.) (citing Berger v. New York City Police Dep't, 304 F.Supp.3d 360, 368 (S.D.N.Y. 2018)).
To establish a disability discrimination claim for an employer's failure to accommodate, the plaintiff must establish: “(1) he is an individual with a disability; (2) an employer covered by the ADA had notice of his disability; (3) with reasonable accommodation, he could perform the essential functions of the position; and (4) the employer had refused to make such accommodations.” Lyons v. Legal Aid Soc., 68 F.3d 1512, 1515-16 (2d Cir. 1995); accord Naik v. Mod. Mktg. Concepts, Inc., 17-CV-0613, 2018 WL 4078264, at *7 (N.D.N.Y. Aug. 27, 2018) (Kahn, J.)
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, see, e.g., Sealed Plaintiff, 537 F.3d at 191, and without expressing an opinion as to whether Plaintiff can withstand a properly filed motion to dismiss or for summary judgment, I recommend that a response be required to Plaintiff's Title I ADA discrimination claim.
2. Title V
42 U.S.C. § 12203(a) provides that “[n]o person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this chapter or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this chapter.” For an ADA retaliation claim, a plaintiff must plead the following: “(1) participation in a protected activity; (2) that the defendant knew of the protected activity; (3) an adverse . . . action; and (4) a causal connection between the protected activity and the adverse . . . action.” Perez v. City of New York, 843 Fed.Appx. 406, 407 (2d Cir. 2021) (quoting Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)).
“Protected activity is action taken to protest or oppose statutorily prohibited discrimination.” Shannon v. Credit Agricole Sec. (USA), Inc., 17-CV-0667, 2021 WL 1063183, at *9 (S.D.N.Y. Mar. 19, 2021) (quoting Natofsky v. City of New York, 921 F.3d 337, 354 (2d Cir. 2019)). “Protected activities include requests for reasonable accommodations.” Wells v. Achievement Network, 18-CV-6588, 2021 WL 810220, at *11 (S.D.N.Y. Mar. 2, 2021) (citing Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 148 (2d Cir. 2002)).
Here, the Complaint alleges that Plaintiff participated in a protected activity requesting a reasonable accommodation and that Defendant knew of Plaintiff's request. (Dkt. No. 1.) Moreover, construing the Complaint with the utmost liberality, it appears to plausibly suggest that at some point in time, Plaintiff's employment with Defendant ceased. (Dkt. No. 1 at 4 [seeking “Back-wages”].) However, the Complaint fails to allege facts plausibly suggesting the circumstances surrounding the conclusion of Plaintiff's employment for Defendant. It is unclear whether Plaintiff voluntarily resigned, was terminated, or some other arrangement resulted in the conclusion of his employment with Defendant. Absent allegations plausibly suggesting that Plaintiff was terminated or that Defendant caused a materially adverse change in Plaintiff's employment status, the Complaint fails to allege facts plausibly suggesting an adverse action. See Sanders v. New York City Human Resources Admin., 361 F.3d 749, 755 (2d Cir. 2004) (quoting Terry v. Ashcroft, 336 F.3d 128,138 (2d Cir. 2003)) (“Examples of . . . a [materially adverse] change include ‘termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.'”).
Moreover, the Complaint fails to allege facts plausibly suggesting any causal connection between Plaintiff's request for accommodations and the conclusion of his employment with Defendant. Although “[a] plaintiff can establish a causal connection that suggests retaliation by showing that protected activity was close in time to the adverse action,” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (citations omitted), the Complaint fails to allege facts plausibly suggesting when Plaintiff's employment with Defendant ceased. As a result, the undersigned is unable to determine whether the alleged protected conduct-requesting an accommodation-was sufficiently close in time to suggest a causal connection.
Further, it appears that Plaintiff filed his request for an accommodation on or about March 14, 2022 (Dkt. No. 1 at 12), and continued to be employed with Defendant through at least December 27, 2022 (Dkt. No. 1 at 25-26). Although no bright line test has been drawn “‘to define the outer limits beyond which a temporal relationship is too attenuated to establish a causal relationship between the exercise of a federal constitutional right and an allegedly retaliatory action'” Espinal v. Goord, 558 F.3d 119, 129 (2d Cir. 2009) (quoting Gorman-Bakos v. Cornell Coop. Extension, 252 F.3d 545, 554 (2d Cir. 2001)), it is possible that Plaintiff's protected conduct may be too attenuated from the alleged adverse action to plausibly suggest a causal relationship.
The undersigned notes that Plaintiff also appears to have engaged in protected conduct on April 16, 2022, when he filed a report with Defendant outlining grievances against several of Defendant's employees, which included an allegation that “Management refuse[s] to accommodate [a] Disabled Employee due to his Compromised Immune System.” (Dkt. No. 1 at 17.) However, as set forth above, the undersigned is unable to meaningfully analyze whether the events are sufficiently close in time to plausibly suggest a causal relationship without additional information regarding the conclusion of Plaintiff's employment with Defendant.
As a result, I recommend that Plaintiff's retaliation claim pursuant to Title V of the ADA be dismissed for failure to state a claim upon which relief may be granted.
Plaintiff also alleged that Mr. Garrison stole $950.00 from Plaintiff's payroll check on December 12, 2021. (Dkt. No. 1 at 8.) However, this occurred before any alleged protected conduct occurred and thus, could not be causally connected. Cifra v. G.E. Co., 252 F.3d 205, 217 (2d Cir. 2001) (quotation marks omitted) (emphasis added) (concluding that the “causal connection needed for a proof of retaliation claim” requires “showing that the protected activity was . . . followed in time by the adverse action.”).
B. Claim Pursuant to the Rehabilitation Act
Plaintiff asserts a discrimination claim pursuant to sections 501 and 503 of the Rehabilitation Act. 29 U.S.C §§ 791, 793. However, the allegations in the Complaint fail to allege facts plausibly suggesting a claim upon which relief may be granted pursuant to those sections.
Section 501 of the Rehabilitation Act, 29 U.S.C. § 791, “prohibits discrimination on the basis of disability in employment decisions by the Federal Government.” Lane v. Pena, 518 U.S. 187, 193 (1996); see also Rivera v. Heyman, 157 F.3d 101, 104-05 (2d Cir. 1998) (“Congress explicitly made Title VII remedies available for violations of [S]ection 501 [of the Rehabilitation Act] . . . to obtain relief for . . . discrimination against a federal employee.”).
The Complaint fails to allege facts plausibly suggesting that Defendant is the federal government. As a result, I recommend that, to the extent the Complaint attempts to assert a discrimination claim against Defendant pursuant to Section 501 of the Rehabilitation Act, it be dismissed for failure to state a claim upon which relief may be granted.
“[T]he Second Circuit has held that Section 503 of the Rehabilitation Act does not provide a private right of action.” Hoffman v. City Coll. of New York, 20-CV-1729, 2021 WL 1226498, at *5 (S.D.N.Y. Mar. 30, 2021) (citing Davis v. United Air Lines, Inc., 662 F.2d 120, 127 (2d Cir. 1981) (“we conclude, as have the other three courts of appeals that have passed upon the question, that no implied private right of action exists under section 503”)).
As a result, I recommend that, to the extent the Complaint attempts to assert a discrimination claim against Defendant pursuant to Section 503 of the Rehabilitation Act, it be dismissed for failure to state a claim upon which relief may be granted.
To the extent that Plaintiff's Complaint is construed liberally to assert a claim pursuant to Section 504 of the Rehabilitation Act, I recommend that it be dismissed for failure to state a claim upon which relief may be granted because the Complaint fails to allege facts plausibly suggesting that Defendant receives federal funds such that it would be subject to the Rehabilitation Act. See T.W. v. N.Y. State Bd. of Law Exam'rs, 996 F.3d 87, 94 (2d Cir. 2021) (quoting Bartlett v. N.Y. State Bd. of Law Exam'rs, 156 F.3d 321, 330 (2d Cir. 1998) (emphasis and internal quotation marks omitted)) (holding that “§504 applies only to entities that receive federal funds. The rationale is that entities that receive federal funds are ‘in a position to accept or reject' corresponding ‘obligations' under the Rehabilitation Act ‘as part of the decision whether or not to receive federal funds.'”).
C. Claims Pursuant to Title VII
Title VII of the Civil Rights Act makes it unlawful 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).
To the extent that Plaintiff's hostile work environment claim is construed as a retaliatory hostile work environment claim pursuant to 42 U.S.C. § 2000e-3, I recommend that it be dismissed for failure to state a claim upon which relief may be granted. Although the standards for a retaliatory hostile work environment claim differ from those of a discriminatory hostile work environment claim, for the reasons set forth above in Part IV.A.2. of this Order and ReportRecommendation, Plaintiff fails to allege facts plausibly suggesting that he was subjected to materially adverse actions that were causally connected to his protected conduct. Carr v. New York City Trans. Auth., 22-CV-0792, 2023 WL 5005655, at *5 (2d Cir. Aug. 7, 2023).
“To state a hostile work environment claim, a plaintiff must plead facts tending to show that the complained of conduct: (1) is objectively severe or pervasive-that is, creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's sex, or another protected characteristic.” Robinson v. Harvard Prot. Servs., 495 Fed.Appx. 140, 141 (2d Cir. 2012); see also Feingold v. New York, 366 F.3d 138, 14950 (2d Cir. 2004).
After carefully reviewing the Complaint, the undersigned concludes that Plaintiff's allegations do not plausibly state a hostile work environment claim. Plaintiff alleges that (1) Mr. Garrison (a) refused to properly document an alleged injury, (b) assigned Plaintiff addresses that were already assigned to other Spectrum employees, and (c) stole $950.00 from Plaintiff's paycheck, which was returned approximately four months later; (2) Mr. Higham denied the disability accommodations that Plaintiff requested; (3) Ms. Lewis forged documents related to Plaintiff's leave of absence from work; and (4) unnamed employees hacked into his e-mail and attempted to change the password.
First, Plaintiff fails to allege facts plausibly suggesting that these above-listed incidents occurred at least in part because of a protected characteristic. Second, the allegations contained in the Complaint do not amount to conduct so severe or pervasive that it plausibly suggests a hostile work environment claim under Title VII. Compare Garcia v. NYC Health & Hosps. Corp., 19-CV-0997, 2019 WL 6878729, at *7 (S.D.N.Y. Dec. 17, 2019) (concluding that an incident where the plaintiff was publicly questioned about his disability by his supervisor did not constitute a hostile work environment even where coupled with four incidents during which his supervisor yelled at or was aggressive towards him and an incident where the plaintiff believed his supervisor referred to him as a “f*****” in another language (asterisks added)), with LeGrand v. WalMart Stores E., LP, 779 Fed.Appx. 779, 781 (2d Cir. 2019) (summary order) (holding that the plaintiff plausibly alleged a hostile work environment where her supervisor called her “r*******,” disclosed her disability to others and referred to her using racial epithets among other employees (asterisks added)). Rather, the allegations appear to be “isolated instances that are neither sufficiently severe nor pervasive to alter the terms of Plaintiff's employment,” and thus “fall short of a claim for a hostile work environment.” Harris v. Off. of N.Y. State Comptroller, 20-CV-8827, 2022 WL 814289, at *11 (S.D.N.Y. Mar. 17, 2022) (finding plaintiff's allegations of separate acts of harassment by different coworkers insufficient to state a claim for a hostile work environment).
As a result, I recommend that Plaintiff's hostile work environment claim pursuant to Title VII be dismissed for failure to state a claim upon which relief may be granted.
V. OPPORTUNITY TO REPLEAD
Generally, a court should not dismiss claims contained in a complaint filed by a pro se litigant without granting leave to replead at least once “when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Branum v. Clark, 927 F.2d 698, 704-05 (2d Cir. 1991); see also Fed.R.Civ.P. 15(a)(2) (“The court should freely give leave when justice so requires.”). An opportunity to replead is not required, however, where “the problem with [the plaintiff's] causes of action is substantive” such that “better pleading will not cure it.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000); see also Cortec Indus. Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“Of course, where a plaintiff is unable to allege any fact sufficient to support its claim, a complaint should be dismissed with prejudice.”). Stated differently, “[w]here it appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of discretion to deny leave to amend.” Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993); accord, Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *1 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.).
See also Carris v. First Student, Inc., 132 F.Supp.3d 321, 340-41 n.1 (N.D.N.Y. 2015) (Suddaby, C.J.) (explaining that the standard set forth in Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 796 (2d Cir. 1999)-that the Court should grant leave to amend “unless the court can rule out any possibility, however unlikely it might be, that an amended complaint would be successful in stating a claim”-is likely not an accurate recitation of the governing law after Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)), rev'd on other grounds, 682 Fed.Appx. 30.
With respect to Plaintiff's claims sounding in Title V retaliation, the Rehabilitation Act, and Title VII hostile work environment, it is not clear whether better pleading would permit Plaintiff to assert a cognizable claim. Out of deference to Plaintiff's pro se status, I recommend that Plaintiff be granted leave to replead those claims.
If Plaintiff chooses to avail himself of an opportunity to amend, such amended pleading must set forth a short and plain statement of the facts on which he relies to support any legal claims asserted. Fed.R.Civ.P. 8(a). In addition, the amended complaint must include allegations reflecting how the individuals named as Defendants are involved in the allegedly unlawful activity. Finally, Plaintiff is informed that any amended complaint will replace the existing Complaint, and 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. MOTION TO STAY PENDING ARBITRATION
Plaintiff filed a motion to stay this action to proceed with binding arbitration asserting that arbitration was mutually agreed upon by the parties. (Dkt. No. 4.) Plaintiff's motion is denied without prejudice to refiling. To the extent that this matter survives sua sponte review, it would be appropriate for the motion to stay to be refiled upon Defendant's appearance in this matter.
The Court notes that Plaintiff also filed a letter purporting to be a “response in opposition to the Denial of Arbitration Proceeding filed by the Defendant.” (Dkt. No. 5.) However, Defendant's “Denial of Arbitration Proceeding” is not presently before the Court to rule on. It is unclear what, if any, relief Plaintiff is seeking in his letter at Dkt. No. 5, and what the basis is for that relief.
ACCORDINGLY, it is
ORDERED that Plaintiff's application to proceed in forma pauperis (Dkt. No. 2) is GRANTED; and it is further
ORDERED that Plaintiff's motion to stay the case and proceed with arbitration (Dkt. No. 4) is DENIED without prejudice; and it is further respectfully
RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD Plaintiff's Complaint (Dkt. No. 1) to the extent that it asserts claims pursuant to (1) Title V of the ADA, (2) the Rehabilitation Act, and (3) Title VII, for failure to state a claim upon which relief may be granted pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further respectfully
RECOMMENDED that A RESPONSE BE REQUIRED to Plaintiff's Complaint (Dkt. No. 1) to the extent that it asserts a claim pursuant to Title I of the ADA; and it is further
ORDERED that the Clerk of the Court shall file a copy of this order and reportrecommendation on the docket of this case and serve a copy upon the parties in accordance with the local rules.
The Clerk shall also provide Plaintiff with copies of all unreported decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties have fourteen days within which to file written objections to the foregoing report. Such objections shall be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN DAYS WILL PRECLUDE APPELLATE REVIEW . 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989)).
If you are proceeding pro se and served with this report, recommendation, and order by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date that the report, recommendation, and order was mailed to you to serve and file objections. Fed.R.Civ.P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or legal holiday. Fed.R.Civ.P. 6(a)(1)(C).