Opinion
22-CV-8715 (LTS)
02-17-2023
DERICK LOUIS WILLIAMS, Plaintiff, v. BREAKING GROUND HOUSING DEVELOPMENT FUND CORPORATION; KAREN WARNER; MUHAMET ISLAMOVIC, Defendants.
ORDER TO AMEND
LAURA TAYLOR SWAIN, CHIEF UNITED STATES DISTRICT JUDGE
Plaintiff, who is appearing pro se, brings this action under the Court's federal question jurisdiction, alleging that his former employer wrongfully terminated his employment. By order dated January 24, 2023, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff brings this action alleging that his employment was “wrongfully terminated of sexual harassment.” (ECF 2, at 2.) He sues Breaking Ground Housing Development Fund Corporation (“Breaking Ground”), his former employer; Karen Warner, a building manager; and Muhamet Islamovic, a supervisor. Plaintiff seeks severance pay and other damages.
The following assertions are taken from the complaint. Plaintiff was employed by Breaking Ground at a building in Upper Manhattan. On March 25, 2022, Plaintiff was falsely accused of improperly touching a woman and violating Breaking Ground's sexual harassment policy. He was later fired from his job. Plaintiff contends that the false accusation made it harder for him to find employment and constitute “character assassination” and an “attempt to destroy [him].” (Id. at 6.)
While Plaintiff's complaint contains few factual allegations, he submits multiple attachments, which include documents he filed with the New York State Department of Labor for unemployment benefits; and a charge of discrimination and letters he submitted to the New York State Division of Human Rights (“NYSDHR”). A decision from the State of New York Unemployment Insurance Appeal Board provides that Plaintiff was employed as a porter by Breaking Ground from December 20, 2021, through March 29, 2022. On March 25, 2022, a case manager from one of Breaking Ground's partners accused Plaintiff of touching her arm as she was leaving the building. She also said that Plaintiff had previously made inappropriate comments about her physical appearance. Plaintiff was fired “for violation of [his] employer's policy by touching the partner company employee.” (Id. at 14.) In the complaint he filed with the NYSDHR, Plaintiff asserted that he was subject to discrimination, retaliation, and wrongful termination of his employment.He claimed that his accuser subjected him to sexual harassment by making “unwarranted terms of endearment” to him, such as “Good morning Love. Honey. Baby for almost two [] months,” and when he reported the conduct to Defendant Warner, she said that the accuser was “just kidding around.” (Id. at 19.) Plaintiff argued that, because Warner was a “good friend” of the accuser, she covered up the accuser's unlawful sexual harassment of him. (Id.)
Plaintiff also indicates in his NYSDHR complaint that he was fired for whistleblowing after he reported violations to the Occupational Safety and Health Administration (“OSHA”) on February 12, 2022. He attaches to the complaint a letter from OSHA dated February 15, 2022, which stated that OSHA received his “possible whistleblower complaint,” and had a conversation with him on February 15, 2022, providing him with information concerning the scope of OSHA's Whistleblower Protection Programs. (Id. at 37.) The letter further noted that, because Plaintiff had “not suffered an adverse employment action/termination, related to activities protected under the OSHA Act,” OSHA was closing the complaint. (Id.) Plaintiff does not allege any facts suggesting that he is bringing this action on the basis of his alleged whistleblowing activities.
DISCUSSION
A. Claims of Employment Discrimination
Plaintiff brings this action invoking the Court's federal question jurisdiction but does not assert a statutory basis for his claims. Because he indicates that he was subject to discrimination in employment the Court will consider whether any of the federal antidiscrimination statutes applies to his claims.
In an employment discrimination action, several antidiscrimination statutes may apply, including Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e-2000e-17; the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101-12213; and the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. §§ 621-634. Title VII prohibits an employer from discriminating against an individual because of his race, color, religion, sex or national origin, 42 U.S.C. § 2000e-2(a); the ADA makes it unlawful for covered employers to discriminate against an otherwise qualified employee on the basis of a disability, 42 U.S.C. § 12112(a); and the ADEA protects an individual from employment discrimination based on his age, 29 U.S.C. § 623(a)..
The ADEA protects workers who are at least forty years old from discrimination because of their age. See 29 U.S.C. § 631(a) (The prohibitions in this chapter shall be limited to individuals who are at least 40 years of age.”); Feldman v. Nassau Cnty., 434 F.3d 177, 180 (2d Cir. 2006).
These statutes prohibit employers from mistreating an individual because of the individual's protected characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), or retaliating against an employee who has opposed any practice made unlawful by those statutes, see Crawford v. Metro. Gov't, 555 U.S. 271, 276 (2009) (holding that conduct is protected when it “confront[s],” “resist[s],” or “withstand[s]” unlawful actions). Protected characteristics include an individual's race, color, religion, sex, national origin, disability, or age. Mistreatment at work that occurs for a reason other than an employee's protected characteristic or opposition to unlawful conduct is not actionable under these federal antidiscrimination statutes. See Chukwuka v. City of New York, 513 Fed.Appx. 34, 36 (2d Cir. 2013) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
At the pleading stage in a Title VII employment discrimination action, “a plaintiff must plausibly allege that (1) the employer took adverse employment 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 Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). A plaintiff “may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination.” Id. The same pleading framework has been applied to disability-based employment discrimination claims under the ADA. See Ciulla-Notto v. Xerox Corp., No. 16-CV-6362, 2017 WL 491688, at *2 (W.D.N.Y. Feb. 7, 2017) (noting that although Vega set forth the pleading standard in the context of Title VII, courts routinely use the same framework to analyze claims under the ADA). To plead a cause of action under the ADEA, a plaintiff must allege facts showing that his age was the but-for cause of the employer's adverse employment action. See Vega, 801 F.3d at 86 (quoting Gross v. FBL Fins. Servs., Inc., 557 U.S. 167, 177 (2009)).
Plaintiff does not state any facts suggesting that Defendants (1) violated a federal antidiscrimination statute by treating him differently because of his protected characteristics, or (2) retaliated against him after he opposed discriminatory practices. Although Plaintiff states that he was fired after he was falsely accused of sexual harassment, he does not allege that the unfair treatment occurred because of a protected characteristic. In light of Plaintiff's pro se status, the Court grants him leave to replead his employment discrimination claims in an amended complaint.
B. Claims Against Individuals
Plaintiff also brings claims against two individual defendants, Karen Warner and Muhamet Islamovic. Individuals are not subject to liability under Title VII, the ADA, or the ADEA. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995) (“[I]ndividual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII.”), abrogated on other grounds by Burlington Ind. v. Ellerth, 524 U.S. 742 (1998); Scalercio-Isenberg v. Morgan Stanley Servs. Grp. Inc., No. 19-CV-6034 (JPO), 2019 WL 6916099, at *7 (S.D.N.Y. Dec. 19, 2019) (“As a matter of law, none of the individual defendants can be held liable under Title VII, the ADA, or the ADEA.”); Garibaldi v. Anixter, Inc., 407 F.Supp.2d 449, 451 (W.D.N.Y. 2006) (“[T]here is no individual liability under any of the federal anti-discrimination statutes, including Title VII, the ADA, and the ADEA.”). However, an individual “who actually participates in the conduct giving rise to the discrimination claim may be held personally liable” under state law, such as the New York State Human Rights Law, N.Y. Exec. Law §§ 290 to 297. Tomka, 66 F.3d at 1317; see Feingold v. New York, 366 F.3d 138, 158 n.19 (2d Cir. 2004). Therefore, if Plaintiff chooses to pursue claims against Warner, Islamovic, or any other individual defendant for employment discrimination, he must allege facts explaining how each named individual defendant actually participated in the conduct giving rise to his discrimination claims in violation of state law.
Under 28 U.S.C. § 1367(c)(3), a district court may decline to exercise supplemental jurisdiction over state-law claims when it “ has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Because it is not clear whether Plaintiff can state any federal claims, the Court will determine at a later stage whether or not to exercise supplemental jurisdiction over any state-law claims Plaintiff seeks to raise. See Martinez v. Simonetti, 202 F.3d 625, 636 (2d Cir. 2000) (directing dismissal of supplemental state-law claims where no federal claims remained).
C. Exhaustion of administrative remedies
Before filing suit under Title VII or the ADA, a plaintiff must file a timely charge with the Equal Employment Opportunity Commission (“EEOC”), and obtain a Notice of Right to Sue. See 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a) (incorporating into the ADA the filing requirements for Title VII claims set forth in 42 U.S.C. § 2000e-5); see also Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 146 (2d Cir. 2012).
A plaintiff suing under the ADEA may file suit in federal court at any time from 60 days after filing the EEOC charge until 90 days after the plaintiff receives notice from the EEOC that the EEOC proceedings are terminated. See Hodge v. New York Coll. of Podiatric Med., 157 F.3d 164, 166 (2d Cir. 1998) (relying on 29 U.S.C. § 626(d), (e)).
The exhaustion of these administrative remedies is not a jurisdictional requirement, but rather, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843, 1846 (2019) (“Title VII's charge-filing instruction is not jurisdictional....”); Hardaway v. Hartford Public Works Dep't, 879 F.3d 486, 491 (2d Cir. 2018) (“exhaustion operates as an affirmative defense”).
Plaintiff does not explain in his complaint whether he has done anything to pursue his claims under Title VII, ADA, or ADEA, including the exhaustion of his administrative remedies. If Plaintiff has exhausted his administrative remedies with the EEOC, he should complete the relevant section on the amended complaint form, which includes questions addressing administrative remedy exhaustion.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a viable federal discrimination claim, the Court grants Plaintiff 60 days' leave to amend his complaint to detail his claims against his former employer and any other defendants.
Plaintiff is granted leave to amend his complaint to provide more facts about his claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and
d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Plaintiff may consider contacting the New York Legal Assistance Group's (“NYLAG”) Legal Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. A copy of the flyer with details of the clinic is attached to this order. The clinic is currently available only by telephone.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 22-CV-8715 (LTS). An Amended Complaint for Employment Discrimination form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.