Opinion
11 CV 5348 (RRM)(LB) 11 CV 5349 (RRM)(LB)
02-04-2013
JOHN L. EDWARDS, Plaintiff, v. ELMHURST HOSPITAL CENTER, Defendant.
BLOOM, United States Magistrate Judge :
REPORT AND RECOMMENDATION
Plaintiff John L. Edwards brings these pro se actions against defendant Elmhurst Hospital Center pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"), and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. ("ADA"). Plaintiff claims that defendant discriminated against him on the basis of his race, color, age and disability by failing to promote him and failing to accommodate his disability, and retaliated against him by refusing to compensate him for work he performed. Defendant moves to dismiss plaintiff's amended complaints pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The Honorable Judge Roslynn R. Mauskopf referred defendant's motion to me for a Report and Recommendation pursuant to 28 U.S.C. § 636(b). For the following reasons, it is respectfully recommended that defendant's motion to dismiss should be granted.
By Order dated March 7, 2012, the Court granted defendant's motion to consolidate this action with plaintiff's simultaneously filed case No. 11-CV-5349. Therefore, the instant motion to dismiss addresses plaintiff's amended complaints filed under both civil case numbers.
Although plaintiff did not check the line on his form amended complaints to indicate that he asserts claims under the ADA, he alleges elsewhere in his pleadings that defendant discriminated against him based on his disability, which he describes as "torn chest muscles." Because plaintiff's pro se pleadings are "to be liberally construed," Erickson v. Pardus, 551 U.S. 89, 94 (2007), the Court reads the amended complaints as claiming a violation of the ADA.
BACKGROUND
Plaintiff is a forty-eight year old African-American man who has worked at Elmhurst Hospital Center, an operating division of New York City Health and Hospitals Corporation, as an Institutional Aide since September 1990. See Am. Compl. (No. 11-CV-5348, ECF No. 4) at ¶¶ 5-7; Am. Compl. (No. 11-CV-5349, ECF No. 4) at ¶¶ 5-7; see also Memo. in Support of Mot. to Dismiss at 1; Decl. in Supp. of Def.'s Mot. to Dismiss (ECF No. 13) Ex. B. Although plaintiff's amended complaints provide few details regarding his claims, plaintiff seems to allege that his employer discriminated against him by disciplining him more harshly than other employees, and by hiring a white co-worker instead of plaintiff for a position as a Mason Helper. Plaintiff also alleges that defendant retaliated against him for filing prior claims of discrimination by refusing to compensate him for work he performed.
Plaintiff fails to state the dates he was employed and the positions he held in the amended complaints; these facts are drawn from plaintiff's EEOC charges, which defendant submitted in support of its motion. Although plaintiff's claims are described in a single paragraph in both amended complaints, the Court assumes the truth of the factual allegations that are included in the amended complaints for the purposes of this motion. Nechis v. Oxford Health Plans, Inc., 421 F.3d 96, 100 (2d Cir. 2005).
The amended complaint filed in Case No. 11-CV-5349 alleges two instances of discrimination. First, plaintiff alleges that defendant subjected him to disciplinary standards that were not enforced against his co-workers, citing a single incident in June 2010 in which a white co-worker used profanity in an altercation with plaintiff's supervisor, but was not disciplined. See Am. Compl. (No. 11-CV-5349, ECF No. 4) at ¶ 8 ("Larry Guittard discriminated on me . . . by race because . . . Dennis Coyle, who is white, told him 'fuck you' and [Guittard] did nothing about it."); see also Letter from Equal Employment Opportunity Commission ("EEOC") to John Edwards accompanying September 22, 2011 Dismissal and Notice of Rights ("You also allege that in June 2010, Dennis Coyle, a coworker said "Fuck You" to your mutual supervisor, Mr. Guittard. Your coworker was not disciplined."). According to the amended complaints, although plaintiff had been disciplined for less serious offenses in the past, Guittard did not punish Coyle, and "lets [Coyle] get away [with] anything he wants to." Am. Compl. (No. 11-CV-5349, ECF No. 4) at ¶ 8. Second, plaintiff alleges that he applied for a job as a Mason Helper in October 2009, but asserts that defendant did not hire him because he is black. Id. Instead, defendant hired a white male for the position. Id. ("Eric Morales, the director of Management Facilities hired . . . McCormick, who is white, and not me, because I am black, for the Mason Helper [position]."); see also Letter from EEOC to John Edwards accompanying September 22, 2011 Dismissal and Notice of Rights ("[Y]ou allege that you applied for a job in October 2009 as a Mason Helper. You were not interviewed and Respondent hired a white male for the position."). Plaintiff provides no further details regarding this claim.
Plaintiff attached the right-to-sue notices and the accompanying letters from the EEOC to his Amended complaints. The Court may consider these documents on a motion to dismiss. See Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) ("[O]n a motion to dismiss, a court may consider documents attached to the complaint as an exhibit or incorporated in it by reference . . . .") (internal quotation omitted); Morris v. David Lerner Assocs., 680 F. Supp. 2d 430, 436 (E.D.N.Y. 2010) ("[W]ith respect to administrative filings (such as the NYSDHR and the EEOC) and decisions, the Court may consider such documents because they are public documents . . . as well as because they are integral to plaintiff's claims.").
In Case No. 11-CV-5348, plaintiff alleges that, for "the last seven years," defendant has been retaliating against him for filing repeated claims of discrimination by refusing to pay him for performing extra job duties. See Am. Compl. 11-CV-5348 at ¶ 8 ("Compensation injury . . . failed to pay [me] for work I did for seven years as an Institutional Aide not a Stock Handler. But I . . . did Stock Handler work and d[id] not get pa[id] for it . . . ."). As plaintiff's EEOC charge states:
I believe [defendant] has discriminated against me in retaliation for filing a complaint of discrimination, in violation of Title VII . . . . I was a Stockworker for seven and a half years, but I also performed some of the job responsibilities of Ms. Lucy Diggs, an African American employee, and Mr. Larry Guittard, the White Assistant Manager. . . . I believe I am being discriminated against because I have previously filed complaints about discrimination with Human Resources and the EEOC, and currently have other outstanding charges.See Decl. in Supp. of Def.'s Mot. to Dismiss (ECF No. 13) Ex. B; see also Letter from EEOC to John Edwards accompanying September 22, 2011 Dismissal and Notice of Rights ("[Y]ou allege that you performed some of the job responsibilities of Ms. Lucy Diggs, an African American employee and Mr. Larry Guittard, a white assistant manager. They were paid for their work but you were not compensated for performing extra job duties."). Although plaintiff states that he brought the issue regarding his compensation to his employer's attention, he claims that defendant refused to address his concerns. Id. ("You believe that no one addressed the issue [of unequal pay] because you have previously filed complaints about discrimination with Human Resources and with the EEOC.").
The instant cases are the seventh and eighth employment discrimination lawsuits plaintiff has filed against his employer in this Court. See Nos. 01-CV-3018; 06-CV-6859; 07-CV-2452; 08-CV-3686; 09-CV-1679; 11-CV-4693.
Plaintiff states that he filed charges with the EEOC on October 28, 2009 relating to defendant's discriminatory failure to hire him as a Mason Worker and its refusal to discipline plaintiff's co-worker. See Am. Compl. (No. 11-CV-5349, ECF No. 4) at ¶ 10. Plaintiff also states that he filed an EEOC charge on July 6, 2011 concerning defendant's retaliatory refusal to pay him for performing certain job duties. See Am. Compl. (No. 11-CV-5348, ECF No. 4) at ¶ 10. Although plaintiff did not submit these EEOC charges with his amended complaints, defendant included these documents as exhibits in support of its Motion to Dismiss. See Decl. in Supp. of Def.'s Mot. to Dismiss, ECF No. 13, Exs. A-B. These forms bear EEOC Charge Numbers that correspond to those on the EEOC right-to-sue letters attached to plaintiff's amended complaints. See id. Ex. A (EEOC Charge No. 520-2011-02561); Ex. B (EEOC Charge No. 520-2011-02904). The EEOC charges also describe the same discriminatory acts alleged in plaintiff's amended complaints. See id. Ex. A ("On October 20, 2009, I applied for a job . . . . I was not interviewed, but on October 28, 2009, they hired a white male. . . . Furthermore, on June 3, 2010, a colleague, Dennis Coyle, said, 'fuck you,' to our mutual supervisor, Mr. Guittard. Mr. Coyle was not disciplined."); id. Ex. B ("I was a Stockworker for seven and a half years, but I also performed some of the job responsibilities of Ms. Lucy Diggs, an African American employee . . . . They were paid for their work but I was not compensated for performing the extra job duties."). Contrary to plaintiff's statement that he filed these EEOC charges on October 28, 2009 and July 6, 2011, the EEOC charge forms submitted by defendant show that these charges were filed on September 2, 2011.
Both forms are date-stamped as "Received" by the EEOC on September 2, 2011. In addition, plaintiff's signature on both documents is dated September 2, 2011.
On September 22, 2011, the EEOC issued Dismissal and Notice of Rights letters to plaintiff for both of his charges. Plaintiff filed the instant actions on October 27, 2011. Defendant moves to dismiss the amended complaints pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, arguing that plaintiff's allegations are time-barred, unexhausted, and fail to state a claim. Plaintiff opposes the motion.
DISCUSSION
I. Standard of Review
On a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court must accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff's favor. Chambers, 282 F.3d at 152. To survive a motion to dismiss, a plaintiff must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "[A] plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal quotation marks omitted). "In keeping with these principles," the Supreme Court has stated, "[w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 679.
As plaintiff is proceeding pro se, the Court is obliged to construe his complaint liberally, "even as [it] examine[s] such complaint[] for factual allegations sufficient to meet the plausibility requirement." Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011) (citation omitted). "It is well-established that the submissions of a pro se litigant must be construed liberally and interpreted 'to raise the strongest arguments that they suggest.'" Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)) (other citations omitted).
II. Timeliness of Plaintiff's Claims
A plaintiff who wishes to pursue a federal employment discrimination claim in New York under Title VII, the ADEA or the ADA must file a charge with the EEOC within 300 days of the alleged unlawful employment practice or challenged discriminatory act. See 42 U.S.C. § 2000e-5(e)(1) (Title VII); 42 U.S.C. § 12117(a) (ADA); 29 U.S.C. § 626(d)(2) (ADEA); Flaherty v. Metromail Corp., 235 F.3d 133, 136 n.1 (2d Cir. 2000) ("To sustain a claim for unlawful discrimination under Title VII and/or the ADEA, a plaintiff must file administrative charges with the EEOC within 300 days of the alleged discriminatory acts."); see also Cherry v. City of New York, 381 Fed. Appx. 57, 58 (2d Cir. 2010) ("A litigant must have filed a timely charge . . . with the [EEOC] and corresponding state agencies as a condition precedent to the filing of an action in federal court pursuant to the [ADEA], the [ADA] or Title VII of the Civil Rights Act. . . . In New York, . . . the statute of limitations for filing a claim with the EEOC is 300 days.").
In the amended complaint filed in Case No. 11-CV-5349, plaintiff contends that he filed an EEOC charge on October 28, 2009 relating to defendant's alleged failure to hire him for a position as a Mason Helper in October 2009. Plaintiff also contends that this October 28, 2009 EEOC charge related to defendant's allegedly discriminatory conduct in June 2010, when it failed to discipline plaintiff's co-worker for using profane language with a supervisor. See Am. Compl. 11-CV-5349 (ECF No. 4) at ¶ 10. However, the plaintiff's EEOC charge form alleging this discrimination was received by the EEOC - and signed by plaintiff - on September 2, 2011. See Decl. in Supp. of Def.'s Mot. to Dismiss, (ECF No. 13), Ex. A ("On October 20, 2009, I applied for a job at the Elmhurst Hospital Center. I was not interviewed, but on October 28, 2009, they hired a white male. . . . Furthermore, on June 3, 2010, a colleague, Dennis Coyle, said, "fuck you," to our mutual supervisor . . . . Mr. Coyle was not disciplined.").
On its face, this allegation makes no sense as plaintiff could not have complained in 2009 about conduct that occurred in 2010.
The Court's obligation to construe pro se submissions liberally does not require the Court to accept allegations that are contradicted by documents incorporated by reference in the complaint. See, e.g., Fisk v. Letterman, 401 F.Supp.2d 362, 368 (S.D.N.Y. 2005) (the "Court [ ] is not obliged to reconcile plaintiff's own pleadings that are contradicted by other matter asserted or relied upon or incorporated by reference by a plaintiff in drafting the complaint"); see also Matusovsky v. Merrill Lynch, 186 F.Supp.2d 397, 399-400 (S.D.N.Y. 2002) (noting that, because a court may consider "documents attached to the complaint as exhibits, or incorporated by reference, as well as any documents that are integral to, or explicitly referenced in, the pleading" in considering a motion under Rule 12(b)(6), "[i]f a plaintiff's allegations are contradicted by such a document, those allegations are insufficient to defeat a motion to dismiss").
Because plaintiff filed his EEOC charge on September 2, 2011, any claim concerning discrimination alleged to have occurred more than 300 days before that date - i.e., before November 6, 2010 - is time-barred. See Predun, 489 F.Supp.2d at 227 ("Failure to file an administrative charge with the EEOC within the 300 days extinguishes the claim and prohibits recovery."). Accordingly, plaintiff's claims regarding acts of discrimination that he alleges took place in October 2009 and June 2010 are time-barred. Defendant's motion to dismiss plaintiff's amended complaint in Case No. 11-CV-5349 should be granted.
Defendant notes in its moving papers that the NYSDHR "received a Verified Complaint charging defendant with various acts of discrimination and naming plaintiff as complainant on June 3, 2011." Although this NYSDHR Complaint was not filed with the Court, even if it charged defendant with the same acts described in his EEOC charge (i.e., failing to hire plaintiff as a Mason Helper in 2009 and failing to discipline a co-worker on June 3, 2010), those acts would still be time-barred.
The allegations asserted in Case No. 11-CV-5349 are not only untimely, they also fail to state a claim for discrimination. Although plaintiff's amended complaint suggests that defendant subjected him to disparate treatment by neglecting to discipline a white co-worker for using profanity in an encounter with a supervisor, plaintiff fails to allege any facts whatsoever regarding how his coworker's treatment differed from his own. The Court may not fill in gaps such as when, how, and for what infraction plaintiff was disciplined differently than his coworkers. See Jenkins v. St. Luke's-Roosevelt Hosp. Center, No. 09 Civ 12, 2009 WL 3682458, at *7 (S.D.N.Y. Oct. 29, 2009) (granting motion to dismiss claim of disparate disciplinary treatment where plaintiff "does not allege that [coworker's] conduct was of 'comparable seriousness' to the conduct for which Plaintiff was terminated" and plaintiff failed to allege "that she was similarly situated in all material respects to the individuals with whom she seeks to compare herself"). Similarly, plaintiff's claim that defendant hired a white male for a position plaintiff sought does not, without more, state a claim for racial discrimination. See, e.g., Williams v. Addie Mae Collins Comm. Serv., No. 11 Civ. 2256, 2012 WL 4471544, at *3 (S.D.N.Y. Sept. 27, 2012) (dismissing failure to hire claim where plaintiff "identifies no comments made or actions taken by [defendant] that support a finding of discrimination"); Williams v. City University of New York, No. 10-cv-2127, 2011 WL 6934755, at *6 (E.D.N.Y. Dec. 30, 2011) ("At a bare minimum, Rule 12(b)(6) requires more than the allegation that a member of a protected class is unhappy with the way that he has been treated by an entity subject to the federal civil rights laws."); Adams v. Foot Locker Retail, Inc., 2008 WL 5068965, at *1 (S.D.N.Y. Nov. 19, 2008) ( "Plaintiff's complaints do not contain any specifics regarding the positions he applied for, his qualifications, or the circumstances under which he failed to obtain the positions. Without such basic details, the complaints must be dismissed for failure to state a claim.").
III. Exhaustion of Plaintiff's ADA and ADEA Claims
Even if plaintiff had timely filed an EEOC charge regarding the discrimination he alleges in his amended complaints, his claims alleging discrimination based on age and disability would nonetheless fail. A plaintiff must exhaust his administrative remedies with the EEOC or an authorized agency before bringing ADA or ADEA claims in federal court. See 29 U.S.C. § 626(d)(2) ("No civil action may be commenced by an individual under [the ADEA] until . . . a charge alleging unlawful discrimination has been filed with the Equal Employment Opportunity Commission"); 42 U.S.C. § 12117 (adopting exhaustion requirement of Title VII codified at 42 U.S.C. § 2000e-5 for ADA). This requirement is an "essential element" of the statutory scheme. Butts v. City of New York Department of Housing, 990 F.2d 1397, 1401 (2d Cir. 1993). As the Second Circuit has noted, the purpose of this provision "would be defeated if a complainant could litigate a claim not previously presented to and investigated by the EEOC." Id. In other words, unless a claim is included in a plaintiff's EEOC charge, or is "reasonably related" to the allegations stated in that charge, it may not be brought in a federal lawsuit. Williams v. New York City Housing Authority, 458 F.3d 67, 70 (2d Cir. 2006) (quotation omitted).
In order for a claim to be considered "reasonably related" to a claim filed with the EEOC, the conduct alleged must "fall within the scope of the EEOC investigation which can reasonably be expected to grow out of the charge that was made." Id. (quoting Fitzgerald v. Henderson, 251 F.3d 345, 359-60 (2d Cir. 2001). "The central question is whether the EEOC would have had adequate notice to investigate both the discrimination mentioned in the EEOC complaint and the discrimination that was not mentioned in the EEOC complaint." Edwards v. New York State Unified Court System, No. 12 Civ 46, 2012 WL 6101984, at *6 (S.D.N.Y. Nov. 20, 2012).
Courts have recognized two other types of claims that are considered "reasonably related" to a claim filed with the EEOC: "(1) a claim alleging retaliation by an employer against an employee for filing an EEOC charge; and (2) a claim where the plaintiff alleges further incidents of discrimination carried out in precisely the same manner alleged in the EEOC charge." Id. at 70 n.1 (internal quotations omitted).
The Clerk of Court is directed to send plaintiff the attached copies of the unreported cases cited herein.
Even liberally construed, plaintiff's EEOC charges do not allege that defendant discriminated against him on the basis of his age or disability. Plaintiff's EEOC charges do not mention plaintiff's "torn chest muscles" - or any other condition that would have placed defendant or the agency on notice of plaintiff's ADA claims. Similarly, plaintiff makes no mention of his age in his EEOC charges, and does not suggest that defendant's conduct toward him was motivated in any way by his age. As plaintiff's EEOC charges do not allege age or disability discrimination, the ADA and ADEA claims asserted in his amended complaints cannot be construed as "reasonably related" to his agency charge. See, e.g., Edwards, 2012 WL 6101984, at *7 ("allegations of disability discrimination are not, therefore, reasonably related to the race discrimination . . . claims [plaintiff] filed with the EEOC. Accordingly, to the extent Edwards raises an ADA claim, such a claim is barred."); Little v. NBC, Inc., 210 F.Supp.2d 330, 375 (S.D.N.Y. 2002) (holding that plaintiff had not exhausted claims for racial discrimination where "[t]here are no descriptions of racial harassment or racial discrimination and, in fact, no mention of race at all [in the plaintiff's complaint to the New York Division of Human Rights]"); Sotolongo v. N.Y. Transit Auth., 63 F.Supp.2d 353, 360 (S.D.N.Y. 1999) (dismissing ADA claim because "plaintiff never filed a charge of disability discrimination with the EEOC, and the claims he did bring before the EEOC are completely unrelated to his claim of disability discrimination"), aff'd, 216 F.3d 1073 (2d Cir. 2000); see also Alonzo v. Chase Manhattan Bank. N.A., 25 F.Supp.2d 455, 458 (S.D.N.Y. 2005) ("Generally, claims based on 'a wholly different type of discrimination' than initially asserted in the EEOC charge will not be permitted to be brought into federal court.") (quoting Peterson v. Ins. Co. of N.A., 884 F.Supp. 107, 109-10 (S.D.N.Y. 1995).
Because plaintiff failed to exhaust his claims that defendant discriminated against him on the basis of his age and disability, defendant's motion to dismiss plaintiff's claims under the ADA and ADEA should be granted.
IV. Retaliation Claim
In the amended complaint filed in Case No. 11-CV-5348, plaintiff claims that defendant has retaliated against him for repeatedly filing discrimination claims over the past seven years by refusing to pay him for work he performed as a stock handler. Under Title VII, an employer is prohibited from discriminating against an employee or applicant because he or she has "opposed" a practice forbidden by Title VII, or has "made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing." 42 U.S.C. § 2000e-3(a).
To establish a prima facie case of retaliation, a plaintiff must show: "(1) that [he] participated in protected activity, (2) that [he] suffered an adverse employment action, and (3) that there was a causal connection between [his] engaging in the protected activity and the adverse employment action." James v. Countrywide Fin. Corp., 849 F.Supp.2d 296, 311 (E.D.N.Y. 2012) (quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 110 (2d Cir. 2010)). While "[a] plaintiff need not establish a prima facie case of discrimination in order to survive a 12(b)(6) motion to dismiss, [he] must nonetheless allege evidence stating a plausible claim of retaliation." Schwartz v. New York State Ins. Fund, No. 12 Civ. 1413, 2012 WL 5587604, at *6 (S.D.N.Y. Aug. 28, 2012); see also Flores v. N.Y. City Human Res. Admin., 2011 WL 3611340, at *8 (S.D.N.Y. Aug. 16, 2011) ("Though not required to plead the elements of a prima facie case, the complaint must still nudge plaintiff's claims across the line from conceivable to plausible to survive [a] motion to dismiss.").
Plaintiff's allegations do not provide a factual basis for a plausible claim of retaliation. While plaintiff's "previously filed complaints about discrimination" constitute protected activity, see La Grande v. DeCrescente Dist. Co., Inc., 370 Fed. Appx. 206, 212 (2d Cir. 2010), and defendant's failure to "compensate [him] for performing . . . extra job duties" may constitute an adverse employment action, see Hernandez v. Kellwood Co., No. 99 Civ. 10015, 2003 WL 22309326, at *18 (S.D.N.Y. 2003) (finding that plaintiff alleged adverse employment action where she "received no extra compensation" for duties that "fell outside of her job description"), plaintiff fails to include any allegations whatsoever to infer a causal nexus between his complaints of discrimination and the alleged adverse action. Significantly, plaintiff fails to allege key facts such as when and to whom he complained regarding discrimination. Moreover, he fails to allege when he performed additional job duties without compensation. The sum and totality of plaintiff's allegations relating to defendant's retaliation are that "I was not compensated for performing the extra job duties. . . . I believe I am being discriminated against because I have previously filed complaints about discrimination." See Decl. in Supp. of Def.'s Mot. to Dismiss (ECF No. 13) Ex. B. Such threadbare and conclusory allegations fail to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002) (internal quotation marks omitted).
Courts considering such deficient pleadings routinely grant motions to dismiss under Rule 12(b)(6). See, e.g., Mandavia v. Columbia Univ., No. 12 Civ 2188, 2012 WL 6186828, at *13 (S.D.N.Y. Dec. 12, 2012) (granting motion to dismiss where "Plaintiff does not allege any specific facts that could give rise to a plausible inference that [employer's motive] was retaliatory. To the contrary, Plaintiff appears to offer little more than a highly speculative argument that because Columbia's . . . action occurred later in time than his first EEOC Complaint, the Court should infer retaliatory motive. This argument does not suffice."); Anderson v. Davis Polk & Wardwell LLP, 850 F.Supp.2d 392, 413 (S.D.N.Y. 2012) (dismissing retaliation claim where "[t]here is literally nothing to connect [plaintiff's] complaint . . . and the self-described retaliatory actions aside from the fact that plaintiff groups these actions underneath the heading of 'retaliation' in his amended complaint").
Over course of the last decade, plaintiff has repeatedly filed lawsuits asking this Court to infer that, because he has filed discrimination charges with the EEOC, his employer's challenged interactions must be retaliatory. However, plaintiff must do more than invoke the word "retaliation" to sustain an employment discrimination claim under federal law. See Wilson v. Reuben H. Donnelley Corp., No. 98 Civ. 1750, 1998 WL 770555, at *4 (S.D.N.Y. Nov. 2, 1998) ("The mere fact that plaintiff had earlier filed an EEOC complaint is not enough to support a contention that the subsequent conduct of defendants was a result of the earlier complaint."); see also Crenshaw v. Herbert, 445 F.Supp.2d 301, 305 (W.D.N.Y. 2006) (granting summary judgment to defendant where "plaintiff offers nothing more than speculation that the moving defendants did what they did because he had filed a grievance").
Accordingly, defendant's motion to dismiss plaintiff's amended complaint alleging retaliation should be granted.
CONCLUSION
For the foregoing reasons, it is respectfully recommended that defendant's motion to dismiss should be granted and plaintiff's amended complaints should be dismissed. Although the Court would generally afford plaintiff an opportunity to amend his complaint, see Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (per curiam), as plaintiff has already amended his complaint, the Court need not afford plaintiff another chance to amend. This is especially true here, where repleading would be futile. See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (dismissing pro se complaint without leave to replead was appropriate where repleading would have been futile); George v. Pathways to Hous., Inc., No. 10 Civ. 9505, 2012 WL 2512964, at *7 (S.D.N.Y. June 29, 2012) (dismissing with prejudice where pro se plaintiff had prior opportunities to amend and failed to allege a cognizable federal claim).
FILING OF OBJECTIONS TO REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections shall be filed with the Clerk of the Court. Any request for an extension of time to file objections must be made within the fourteen-day period. Failure to file a timely objection to this Report generally waives any further judicial review. Marcella v. Capital Dist. Physicians' Health Plan, Inc., 293 F.3d 42 (2d Cir. 2002); Small v. Sec'y of Health and Human Servs., 892 F.2d 15 (2d Cir. 1989); see Thomas v. Arn, 474 U.S. 140 (1985). SO ORDERED.
/S/ Judge Lois Bloom
LOIS BLOOM
United States Magistrate Judge Dated: February 4, 2013
Brooklyn, New York