Opinion
6:18-CV-01340
12-06-2018
MICHELLE CHIN, Plaintiff, v. ALEJANDRO TORRES, et al., Defendants.
APPEARANCES: MICHELLE CHIN Plaintiff pro se 46 River Street Apartment 1 Otego, New York 13825
(TJM/TWD) APPEARANCES: MICHELLE CHIN
Plaintiff pro se
46 River Street
Apartment 1
Otego, New York 13825 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER AND REPORT-RECOMMENDATION
The Clerk has sent to the Court for review the pro se complaint in this employment discrimination action brought by Plaintiff Michelle Chin pursuant to Title VII of the Civil Rights Act of 1962, as amended, 42 U.S.C. §2000e, et seq, alleging discrimination on account of her sex, hostile work environment, and constructive termination. (Dkt. No. 1.) Also before the Court is Plaintiff's application for leave to proceed in forma pauperis ("IFP application"). (Dkt. No. 2.)
I. IFP APPLICATION
A court may grant 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 IFP application, the Court finds that Plaintiff meets this standard. Therefore, Plaintiff's IFP application (Dkt. No. 2) is granted.
II. LEGAL STANDARDS FOR INITIAL REVIEW
Even when a plaintiff meets the financial criteria for in forma pauperis, 28 U.S.C. § 1915(e) directs that when a plaintiff proceeds in forma pauperis, "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)(B)(i)-(iii).
In determining whether an action is frivolous, the court must look to see whether the complaint lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). "An action is frivolous when either: (1) the factual contentions are clearly baseless such as when the claims are the product of delusion or fantasy; or (2) the claim is based on an indisputably meritless legal theory." Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998) (citations and internal quotation marks omitted). Although extreme 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 still has a responsibility to determine that a claim is not frivolous before permitting a plaintiff to proceed. See, e.g., Thomas v. Scully, 943 F.2d 259, 260 (2d Cir. 1991) (per curiam) (holding that a district court has the power to dismiss a complaint sua sponte if the complaint is frivolous).
To survive dismissal for failure to state a claim, a complaint must plead enough facts to state a claim that is "plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While Rule 8(a) of the Federal Rules of Civil Procedure, which sets forth the general rules of pleading, "does not require detailed factual allegations, . . . it demands more than an unadorned, the-defendant-harmed-me accusation." Id. In determining whether a complaint states a claim upon which relief may be granted, "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). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.
Where a plaintiff proceeds pro se, the pleadings must be read liberally and construed to raise the strongest arguments they suggest. Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008) (citation omitted). A pro se complaint should not be dismissed "without giving leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated." Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (citation and internal quotation marks omitted). An opportunity to amend is not required 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).
III. PLAINTIFF'S COMPLAINT
Plaintiff alleges that she was employed in the Housekeeping Department at Hampton Inn in Oneonta, New York from the Winter of 2010 until her employment was constructively terminated in September of 2017 as a result of a long term pattern of sexual harassment by a male employee with whom she worked which, along with the failure of management to properly address the harassment, resulted in a hostile work environment, thereby forcing her to resign. (Dkt. No. 1 at 7-22.) Plaintiff has commenced this Title VII action against Defendants Alejandro Torres ("Torres"), the Hampton Inn employee by whom Plaintiff was allegedly sexually harassed; Darlene Wells ("Well"), Executive Housekeeper at the Hampton Inn; Hope Kabir ("Kabir"), General Manager of the Oneonta Hampton Inn; Edwin Colburn ("Colburn"), Maintenance Manager at the Hampton Inn; and Brendalyn Keefer ("Keefer"), President of SD Management, a company involved in overseeing the management of the Hampton Inn. Id. Plaintiff has not identified her employer, other than to indicate she worked at the Hampton Inn that was managed by SD Management, and she has not included a copy of the right to sue letter, which would likely disclose the identity of her employer, with her complaint.
Plaintiff alleges she received a right to sue letter from the Equal Employment Opportunity Commission on August 16, 2018. (Dkt. No. 1 at 5.)
Page references to documents identified by docket number are to the numbers assigned by the CM/ECF docketing system maintained by the Clerk's Office.
IV. ANALYSIS
Title VII provides that "[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). To state a claim under Title VII, a plaintiff must plead a discrimination claim "that is facially plausible and . . . give[s] fair notice to the defendant of the basis for the claim." Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 215 (S.D.N.Y. 2010) (citation omitted); see also Iqbal, 556 U.S. at 678.
Plaintiff has sued the individual by whom she claims to have been sexually harassed, two individuals holding management positions at the Oneonta Hampton Inn, and the owner of the management company alleged to have been overseeing the management of the Inn. (Dkt. No. 1.) The Second Circuit has held that "individuals are not subject to liability under Title VII." Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000), abrogated on other grounds by Burlington v. Ellerth, 524 U.S. 742 (1998); see also Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004) (citing Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) ("individuals with supervisory control over a plaintiff may not be held personally liable under Title VII")); Bakal v. Ambassador Const., No. 94 CIV. 584 (JSM), 1995 WL 447784, at *3 (S.D.N.Y. July 28, 1995) (finding Title VII remedies apply only to the employer and not the individuals who engaged in prohibited conduct); Harrison v. Lesort, No. 09 Civ. 10188 (SHS), 2011 WL 744670, at *2 (S.D.N.Y. Mar. 1, 2011) (a defendant's alleged ownership interest in employer does not change the fact that because defendant is an individual he cannot be held liable under Title VII). Therefore, the Court finds that none of the presently named Defendants are proper defendants in this Title VII action.
The Court will provide Plaintiff with a copy of the unpublished decision in accordance with the Second Circuit decision in LeBron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
In light of the foregoing, the Court recommends that Plaintiff be granted thirty days from the date the District Court files its Order on this Court's Report-Recommendation within which to file an amended complaint naming her employer at the Hampton Inn as the defendant in this action. The Court further recommends that upon the expiration of the thirty days granted Plaintiff to file an amended complaint, enlarged by any extension granted to Plaintiff by the Court, the action be dismissed with prejudice as against Defendants Torres, Wells, Kabir, Colburn, and Keefer regardless of whether or not Plaintiff has filed an amended complaint.
ACCORDINGLY, it is hereby
ORDERED, that Plaintiff's second IFP application (Dkt. No. 2) is GRANTED; and it is
RECOMMENDED, that Plaintiff be granted leave to file an amended complaint naming her employer at the Hampton Inn as defendant within thirty days from the filing of an order by the District Court on this Court's Report-Recommendation; and it is further
RECOMMENDED, that at the expiration of the thirty days granted Plaintiff to file an amended complaint, enlarged by any extension granted to Plaintiff by the Court, the action be dismissed with prejudice against Torres, Wells, Kabir, Colburn, and Keefer regardless of whether or not Plaintiff has filed an amended complaint; and it is hereby
ORDERED, that in the event Plaintiff files an amended complaint, the Clerk submit the amended complaint to this Court for initial review pursuant to 28 U.S.C. § 1915(e); and it is further
ORDERED, that the Clerk provide Plaintiff with a copy of this Order and Report-Recommendation, along with copies of all unpublished decisions cited herein in accordance with Lebron v. Sanders, 557 F.3d 76 (2d Cir. 2009) (per curiam).
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. Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Services, 892 F.2d 15 (2d Cir. 1989)); 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72. Dated: December 6, 2018
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation 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. 6(a)(1)(C).
Syracuse, New York
/s/_________
Thérèse Wiley Dancks
United States Magistrate Judge