10 Civ. 8745 (PKC)
MEMORANDUM AND ORDER
Plaintiff Benjamin Shamilov, proceeding pro se, brings this action for employment discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991 ("Title VII"), and the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 721 et seq. ("ADEA"). Plaintiff alleges that the defendant New York City Human Resources Administration ("HRA") discriminated against plaintiff on the basis of his national origin and age in misrepresenting plaintiff's employment data and failing to provide him with adequate assistance in securing employment according to his education and experience. Now before the Court is HRA's motion for judgment on the pleadings pursuant to Rule 12(c), FED. R. CIV. P. (Docket #19.) For the reasons set forth below, HRA's motion is granted. Plaintiff's complaint is therefore dismissed.
Plaintiff is a Caucasian male born in 1950 of Russian and Jewish descent. (Docket #2 at 3.) Throughout the relevant time period, plaintiff has sought and received assistance from the HRA in the form of food stamps, cash assistance, and professional assistance in securing employment. (See, e.g., Docket #2-2 at 3.) Plaintiff previously brought suit against the HRA in this Court in 2001, alleging various claims of employment discrimination. See Shamilov v. N.Y. City Human Res. Admin., 01 Civ. 8990 (PKC) (S.D.N.Y. 2003) (Buhta Decl. Ex. A). In that case, I adopted Magistrate Judge Eaton's Report and Recommendation and granted summary judgment to HRA. (Order of Dec. 2, 2003; Docket #37.)
Plaintiff's discrimination claims in the present case stem from HRA's alleged "failure to create [a] real and sufficient Employability Plan" for plaintiff. (Docket #2 at 3.) Plaintiff's Complaint calls attention to a series of "Employability Plans" prepared by HRA case workers to assist plaintiff in securing employment. Each plan contains an assessment and evaluation of plaintiff's employability status across several categories, including language proficiency, prior work history, education, math and reading test scores, relevant personal characteristics and employment preferences. (Id.) Plaintiff's Complaint and accompanying exhibits reveal that HRA case workers have prepared for him at least four employability plans since 2006: a July 17, 2006 plan (Docket #2-1 at 1-4), a May 12, 2009 plan (Docket #2-1 at 27-29; Docket #2-2 at 1-2), a July 24, 2009 (Docket #2-2 at 11-18), and an August 3, 2009 plan (Docket #2-2 at 28-30). After preparing each plan, the HRA assigned plaintiff to a job according to his skills, education, and experience. The public aid benefits that the HRA provided to plaintiff—such as cash and food stamps—were conditioned on plaintiff adequately complying with certain attendance and performance requirements at his assigned job location. (Buhta Decl. Exs. B, C.) Following plaintiff's first plan dated July 17, 2006, the HRA assigned plaintiff to perform maintenance work for the Department of Citywide Administrative Services beginning on September 25, 2006. (Docket #2-1 at 4.)
Plaintiff has filed two unsuccessful complaints with the New York State Division of Human Rights ("NYSDHR") in which he alleged that defendant HRA discriminated against him in preparing these plans. First, plaintiff filed a verified complaint with the NYSDHR on June 27, 2008 in which he alleged that an HRA case worker deliberately "mishandled his case" because plaintiff is Jewish, Caucasian, of Russian national origin, and "has dark skin." (Buhta Decl. Ex. B, at 2.) Specifically, plaintiff claimed that his work assignment was "not commensurate with his educational background" and the HRA case worker who prepared his plan had "altered his personal and education data." (Id. (internal quotations omitted).) Plaintiff had been receiving public assistance benefits on the condition that he complied with the HRA's "work activity requirements" and those benefits were terminated by the HRA for non-compliance with those requirements. (Id.) Plaintiff claimed that in so doing, the HRA discriminated against him on the basis of his race, and creed and national origin in violation of the New York State Human Rights Law, N.Y. Exec. L., art. 15 ("NYSHRL"). (Id. at 1.)
Following an investigation and review of the available evidence, the NYSDHR issued a written determination on March 31, 2010 in which it found no probable cause to support plaintiff's claims. (Id.) Plaintiff's "belief that the work assigned to him was not commensurate with his educational background [did] not exempt him from" the HRA's work requirements. (Id. at 2.) The NYSDHR's investigation found "nothing in the record to suggest" that any HRA case worker had altered his employment data so as to support a "causal nexus between [HRA]'s treatment of [plaintiff] and his creed, race, color, national origin, and/or any opposition to discrimination." (Id.)
Plaintiff filed a second verified complaint with the NYSDHR on July 28, 2009 in which he alleged the HRA violated the NYSHRL by retaliating against plaintiff for opposing its discriminatory practices. (Buhta Decl. Ex. D.) Plaintiff alleged that his employability plan dated July 24, 2009 (Docket #2-2 at 11-18) both contained inaccurate information regarding his employment and education history and incorrectly reflected his math and reading skills. (Buhta Decl. Ex. D, at 1-2.) Plaintiff's July 24, 2009 plan erroneously indicated that he had no work experience, had not achieved a high school diploma, and had reading and math "skills grade level[s]" of 0.4 and 0.7, respectively. (Docket #2-2 at 15-16). Plaintiff claimed that HRA had deliberately "altered" his scores and misrepresented his education and employment history to retaliate against plaintiff for prior allegations of discrimination. (Buhta Decl. Ex. D, at 1-2.)
Plaintiff's employability plan dated May 12, 2009—which he also presented to the NYSDHR in his second verified complaint—reported the same incorrect math and reading grade levels as in his July 24, 2009 plan. (Docket #2-2 at 1.)
Following an investigation, the NYSDHR issued a written determination concluding that no probable cause existed to support plaintiff's allegations. The DHR agreed with plaintiff that the HRA case worker incorrectly recorded several details of plaintiff's education and employment history on his employability plan, but noted that the HRA "promptly corrected" any errors. (Id. at 2.) Indeed, plaintiff's Complaint in this case shows that on August 3, 2009, the HRA issued a corrected plan that addressed the errors in the July 24, 2009 plan, which had been issued less than two weeks earlier. (Docket #2-2 at 28-30.) The NYSDHR concluded that there was a "lack of evidence" of any discriminatory motivation or "retaliatory animus" by HRA employees and that, regardless, plaintiff had "continued to receive his public assistance benefits without interruption" following the July 24, 2009 plan. (Buhta Decl. Ex. D, at 2.)
Plaintiff then sought relief from the United States Equal Employment Opportunity Commission ("EEOC"). Following its own investigation, the EEOC issued a "Dismissal and Notice of Rights" letter to plaintiff on August 11, 2010 in which it adopted the findings of the NYSDHR and informed plaintiff of his right to bring suit. (Buhta Decl. Ex. F.)
Plaintiff filed this pro se Complaint on November 10, 2010. (Docket #2.) In his 106-page Complaint, which includes exhibits both numbered and unnumbered, plaintiff claims that the HRA discriminated against him on the basis of national origin and age for failing to hire plaintiff, failing to promote plaintiff, offering plaintiff unequal employment terms and conditions, and retaliating against plaintiff for "numerous previous complaints." (Id. at 3.) Plaintiff states the specific facts of his case as follows:
Very bad and long case of discrimination and intentionally misrepresentation by HRA and HRA vendors and their employees. Acts of sabotage because misrepresented personally me and all my personal data. Fabricated directly cases with intentionally misrepresented, distorted facts and data. Failure to create real and sufficient Employability Plan which was required to get adequate assistance in job search in order to get job according education and experience[.](Id.) As relief, plaintiff seeks assistance in securing employment commensurate with his education and experience, monetary damages, and reimbursement for time in which plaintiff suffered from HRA's "injustice and discrimination." (Id. at 4.)
A motion for judgment on the pleadings under Rule 12(c), FED. R. CIV. P., is reviewed under "the same standard as that applicable to a motion under Rule 12(b)(6)." King v. Am. Airlines, Inc., 284 F.3d 352, 356 (2d Cir. 2002) (quoting Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999)). To survive a motion to dismiss under Rule 12(b)(6), "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, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "'Labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do,'" rather, a plaintiff must plead "factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (quoting Twombly, 550 U.S. at 555). In considering a Rule 12(b)(6) motion to dismiss, all non-conclusory factual allegations are accepted as true, see id. at 1949-50, and all reasonable inferences are drawn in plaintiff's favor. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir. 2007) (per curiam).
For complaints asserting claims of discrimination, the Iqbal plausibility standard applies in conjunction with the pleading standards set forth in Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002). See Twombly, 550 U.S. at 547 ("This analysis does not run counter to Swierkiewicz . . . . Here, the Court is not requiring heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face."); Arista Records LLC v. Doe, 604 F.3d 110, 119-21 (2d Cir. 2010) (finding Swierkiewicz, Twombly, and Iqbal in agreement). Indeed, "[t]he Swierkiewicz holding applies with equal force to any claim . . . that the McDonnell Douglas framework covers" and "retains its vitality in the wake of Twombly and Iqbal." Langford v. Int'l Union of Operating Eng'rs, 765 F. Supp. 2d 486, 497 (S.D.N.Y. 2011) (citing Boykin v. KeyCorp, 521 F.3d 202, 212-13 (2d Cir. 2008)).
At the pleading stage, Swierkiewicz teaches that a plaintiff is not required to come forth with allegations sufficient to make a prima facie case of employment discrimination or to satisfy the burden-shifting framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007). Rather, "a complaint must include . . . a plain statement of the claim . . . [that] give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Swierkiewicz, 534 U.S. at 512 (internal quotations omitted). Accordingly, to overcome a Rule 12(b)(6) motion to dismiss in an employment discrimination case, a complaint must give fair notice of the basis of plaintiff's claims and the claims themselves must be facially plausible.
In this action, plaintiff proceeds pro se. Courts are to review pro se complaints under a more lenient standard than that applied to "formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Accordingly, the Court construes his submissions liberally and interprets them "to raise the strongest arguments that they suggest." Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 471 (2d Cir. 2006) (emphasis in original) (internal quotations omitted). Although this applies with particular force when a plaintiff alleges civil rights violations, McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004), the Court need not accept as true plaintiff's "conclusions of law or unwarranted deductions of fact." First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 771 (2d Cir. 1994).
In ruling on a motion for judgment on the pleadings, this Court considers plaintiff's Complaint as well as exhibits or documents incorporated by reference without converting the motion into one for summary judgment. See Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995). This Court may also consider any document integral to the complaint upon which it "relies heavily," Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002), documents "in possession of the party opposing the motion," Prentice v. Apfel, 11 F. Supp. 2d 420, 424 (S.D.N.Y. 1998), or matters of public record for which it make take judicial notice. See Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
Plaintiff brings this employment discrimination action pursuant to Title VII and the ADEA. Defendant HRA has moved for judgment on the pleadings under Rule 12(c), FED. R. CIV. P.
I. The HRA Is Not a Suable Entity Under New York Law
In his Complaint, plaintiff names as defendant the "Human Resources Administration." (Docket #2 at 1-2.) Under Rule 17(b), FED. R. CIV. P., the HRA's capacity to be sued is determined by state law. Chapter 17, section 396 of the New York City Charter provides that "all actions and proceedings for the recovery of penalties for violation of any law shall be brought in the name of the city of New York and not that of any agency except where otherwise provided by law."
As a municipal agency of New York City, the HRA is not a suable entity. N.Y. City Charter, chap. 17 § 396; see Ximines v. George Wingate High Sch., 516 F.3d 156, 160 (2d Cir. 2008) ("In any case, Section 396 of the Charter has been construed to mean that New York City departments, as distinct from the City itself, lack the capacity to be sued."). Accordingly, all of plaintiff's claims against the HRA are dismissed.
Even if I were to construe plaintiff's claims as having been asserted against the City of New York, plaintiff has still failed to state a claim for the reasons set forth below.
II. Plaintiff Fails to State a Claim Upon Which Relief May be Granted Under Either Title VII or the ADEA
a. Plaintiff Fails to State a Claim Under Title VII
Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against an individual on the basis of "race, color, religion, sex, or national origin," but it does not encompass claims based on general animus or hostility. 42 U.S.C. § 2000e-2(a). At the pleading stage, a complaint must allege the essential elements of an employment discrimination claim. Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007). To state a claim of national origin discrimination under Title VII, a plaintiff must allege that he belongs to a protected class, suffered an adverse employment action, and that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent. See Sanders v. Human Res. Admin., 361 F.3d 749, 755 (2d Cir. 2004).
"Title VII imposes liability for employment discrimination only on an 'employer.'" Arculeo v. On-Site Sales & Mktg., LLC, 425 F.3d 193, 197 (2d Cir. 2005). As such, the existence of an employer-employee relationship is the "primary element" of a discrimination claim under Title VII. See Gulino v. N.Y. State Ed. Dep't, 460 F.3d 361, 370-72 (2d Cir. 2006). Title VII defines an "employer" as "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year, and any agent of such a person." Kern v. City of Rochester, 93 F.3d 38, 45 (2d Cir. 1996) (citing 42 U.S.C. § 2000e(b)). The term "employer" is viewed functionally, encompassing persons who are not technically employers "but who nevertheless control some aspect of an employee's compensation or terms, conditions, or privileges of employment." McCray v. City Univ. of N.Y., 2011 WL 1197467, at *4-5 (S.D.N.Y. Mar. 25, 2011) (internal quotations omitted) (dismissing Title VII claim against defendant where plaintiff "failed to sufficiently allege that [defendant] CUNY was her employer").
Plaintiff's failure to allege an employer-employee relationship between himself and the HRA is fatal to his claim for employment discrimination under Title VII. "Title VII is an employment law, available only to employees (or prospective employees) seeking redress for the unlawful employment practices of their employers." Kern, 93 F.3d at 45 (emphasis in original) (internal quotations omitted). Plaintiff has not alleged in his Complaint or accompanying exhibits that the City of New York—the proper defendant in this case—was ever his employer or prospective employer, or that plaintiff ever sought or applied for a position with the City of New York. Accordingly, plaintiff fails to state a claim for employment discrimination under Title VII. See id. (affirming denial of plaintiff's motion to amend complaint to add Title VII claim against the City of New York); see, e.g., Krasner v. Episcopal Diocese of Long Island, 374 F. Supp. 2d 306, 309 (E.D.N.Y. 2005) (granting motion to dismiss Title VII discrimination claim where complaint failed to allege an "employee-employer relationship between the parties"); McCray, 2011 WL 1197467, at *4 (same); Lunts v. Rochester City Sch. Dist., 2011 WL 4074574, at *4 (W.D.N.Y. Sept. 13, 2011) (same).
A review of plaintiff's 106-page Complaint indicates only that plaintiff applied for—and was denied—employment at two potential employers: Princeton University's Plasma Physics Laboratory, and the Graduate School and University Center of the City University of New York. (Docket #2 at 15, 16.) However, the rejection letters from these two entities that plaintiff includes with his Complaint are dated October 29, 1990, and August 31, 1994, respectively—long before the events at issue. (Id.) --------
Plaintiff also fails to plausibly allege that the City of New York took an adverse employment action against him. An adverse employment action must "cause a materially adverse change in the terms and conditions of employment." Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007). The action cannot be a "mere inconvenience," but may 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." Leibowitz v. Cornell Univ., 584 F.3d 487, 499 (2d Cir. 2009) (internal quotations omitted). Again, plaintiff has not alleged that he ever worked for or applied for any position with the City of New York, much less that the City demoted plaintiff, terminated plaintiff, or otherwise diminished his responsibilities. Accordingly, plaintiff cannot sustain a claim of employment discrimination against the City of New York under Title VII. See Jackson v. N.Y. State Dep't of Labor, 709 F. Supp. 2d 218, 226-28 (S.D.N.Y. 2010) (dismissing Title VII claim alleging that defendant "transferred [plaintiff] to an undesirable work assignment").
Although not addressed by the parties, I note that plaintiff could have alleged discrimination under an "alternative theory of liability" in which the City, acting as an "employment agency" under Title VII, restricted plaintiff's access to employment. See, e.g., Lunts, 2011 WL 4074574, at *5 (raising sua sponte and dismissing possible Title VII "employment agency" claim against defendant where plaintiff had failed to allege defendant was her employer). An employment agency violates Title VII if fails or refuses "to refer for employment, or otherwise to discriminate against, any individual because of his race, color, religion, sex, or national origin, or to classify or refer for employment any individual on the basis of his race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(b). An "employment agency" is "any person regularly undertaking with or without compensation to procure employees for an employer or to procure for employees opportunities to work for an employer and includes an agent of such a person." Id. § 2000e(c). To state a claim under this theory, plaintiff must allege that the City of New York refused or failed to refer plaintiff to an available position with an employer on the basis of discriminatory animus regarding his national origin. See EEOC v. Kelly Servs., Inc., 598 F.3d 1022, 1029-31 (8th Cir. 2010).
Read generously, plaintiff's Complaint fails to state a claim under such a theory of liability. First, plaintiff does not identify any specific position or occupation to which HRA refused to refer him, much less that HRA did so on the basis of his national origin. Moreover, plaintiff does not allege in his Complaint that HRA's failure or refusal to refer him to any such position constituted an "adverse employment action" under Title VII. See EEOC, 598 F.3d at 1030 (declining to decide whether alleged refusal to refer constituted an adverse employment action because plaintiff still "failed to show that [employer] had an available position to which [defendant employment agency] could actually refer"). Lastly, plaintiff has alleged no facts to show that any HRA case worker refused to refer plaintiff to an available position with an outside employer based on his Russian and Jewish heritage.
Accordingly, defendant's motion for judgment on the pleadings as to plaintiff's claim for discrimination on the basis of national origin under Title VII is granted.
b. Plaintiff Fails to State a Claim Under the ADEA
The ADEA makes it unlawful for an employer to "to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). Congress "modeled" the substantive provisions of the ADEA "upon the prohibitions of Title VII." Mabry v. Neighborhood Defender Serv., 769 F. Supp. 2d 381, 391-92 (S.D.N.Y. 2011) (quoting McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 357 (1995)). Accordingly, "interpretations of the substantive antidiscrimination provisions of Title VII apply 'with equal force' in the context of ADEA age discrimination cases." Id. (quoting Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985)).
As with a claim under Title VII, at this stage the plaintiff must allege the essential elements of an employment discrimination claim. Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007). Plaintiff must allege that he was a member of a protected class, his employer took an adverse employment action against him, and this action occurred under circumstances from which a discriminatory motivation can be inferred. Mabry, 769 F. Supp. 2d at 391-92. In alleging disparate treatment based on age, a plaintiff must further demonstrate that his age "actually motivated the employer's decision" and had a "determinative influence on the outcome." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141 (2000).
Plaintiff has not alleged any facts to support his claim that the City of New York discriminated against him on the basis of his age. Born in 1950, plaintiff has sufficiently alleged that he is a member of the protected class, but has not shown any facts to make his ADEA claim "plausible on its face." Perry v. N.Y. State Dep't of Labor, 2009 WL 2575713, at *3 (S.D.N.Y. Aug. 20, 2009) (quoting Patane, 508 F.3d at 111-12). Plaintiff's Complaint and its accompanying exhibits are replete with allegations that an HRA case worker prepared a "false," "fake," "altered," or "fabricated" employability plan for plaintiff (Docket #2 at 3; id. #2-1 at 25-26; id. #2-2 at 3, 9, 21-25), but they allege no facts that raise an inference of possible discriminatory animus on the basis of age. Moreover, in neither of plaintiff's verified complaints to the NYSDHR did he plead any facts suggesting that HRA case workers were motivated by age-based animus in preparing his employability plans. (Docket #2-1 at 25-26; Docket #2-2 at 9-10.) The entirety of plaintiff's allegations of age discrimination appear to be his written notation, "also age is factor," on a single page of his Complaint. (Docket #2 at 3.)
Moreover, as discussed with respect to plaintiff's claim under Title VII, plaintiff has not adequately alleged the existence of an adverse employment action. Plaintiff asserts that the HRA engaged in a "[v]ery long and bad case of discrimination and intentionally misrepresentation by HRA" of his employment status (id. at 2), but does not allege that following the issuance of his employability plans, the City of New York or any of its agencies ever refused to hire or promote plaintiff or that he ever applied for a position with any such agency.
This Court is mindful that the pleading requirements in an employment discrimination action are "very lenient." Brown v. Coach Stores, Inc., 163 F.3d 706, 710 (2d Cir. 1998). However, "[t]he special solicitude afforded to a pro se litigant does not relieve the plaintiff of his obligations under Rule 8." Perry, 2009 WL 257513, at *3 (dismissing amended pro se complaint where plaintiff "failed to set forth any allegations that raise a possible inference of discriminatory motivation" as to race or age). In this case, plaintiff's allegations of age discrimination amount to his inclusion in the ADEA's protected class and the HRA's failure to "create real and sufficient Employability Plan[s]" by "misrepresent[ing]" and "fabricat[ing]" his personal data. (Docket #2 at 3.) Read generously, these allegations standing alone are insufficient to properly plead a claim of age discrimination under the ADEA.
Accordingly, defendant's motion for judgment on the pleadings as to plaintiff's claim of age discrimination under the ADEA is granted.
c. Plaintiff Fails to State a Claim for Retaliation
In addition to alleging that HRA failed to hire plaintiff, failed to promote plaintiff, and provided him "unequal terms and conditions" of his employment, plaintiff also claims retaliation "for numerious [sic] previous complaints." (Id. at 2-3.) To state a retaliation claim, a plaintiff must demonstrate that (1) he engaged in protected activity by opposing an employment practice made unlawful under the relevant statute; (2) his employer was aware of plaintiff's protected activity; (3) the employer took an adverse employment action against the plaintiff; and (4) there was a causal connection between the protected activity and the adverse employment action. See Jackson v. N.Y. State Dep't of Labor, 709 F. Supp. 2d 218, 227 (S.D.N.Y. 2010) (citing McMenemy v. City of Rochester, 241 F.3d 279, 282-83 (2d Cir. 2001)). At this stage, plaintiff need not establish a prima facie case of discrimination, but must nonetheless "allege facts that state a plausible retaliation claim." Id. at 228.
This Court assumes for the purposes of this motion that plaintiff has adequately alleged the first two elements of a retaliation claim. Plaintiff filed a verified complaint with the NYSDHR on June 27, 2008 alleging that the HRA discriminated against him on the basis of his national origin in preparing his employability plans. (Docket #2-1 at 25-26.) "Participation in protected activity includes expressing opposition to employment practices unlawful under Title VII [or relevant statute] . . . ." Swift v. Countrywide Home Loans, Inc., 770 F. Supp. 2d 483, 486 (E.D.N.Y. 2011); see also Jackson, 709 F. Supp. 2d at 228 (finding that plaintiff's complaint with the NYSDHR constituted opposition to an employment practice for purposes of retaliation claim). This Court reads plaintiff's Complaint to mean that in retaliation for filing his first June 27, 2008 complaint with the NYSDHR, HRA case workers intentionally misreported his education, employment history, and math and reading skills on his July 24, 2009 employability plan—the precise claim he alleged in his second verified complaint to the NYSDHR, which it dismissed in a written determination dated March 31, 2010. (Buhta Decl. Ex. D.)
Construing plaintiff's Complaint generously, this Court concludes that plaintiff has failed to plead a plausible claim of retaliation against the City of New York. Plaintiff alleges no facts to plausibly suggest how he suffered an adverse employment action as a result of filing his first verified complaint in June 2008. Not only was the City neither his employer nor prospective employer, but the NYSDHR specifically noted that plaintiff "continued to receive his public assistance benefits without interruption" following the July 24, 2009 evaluation. (Id. at 2.) Moreover, the HRA promptly corrected any errors in a subsequent plan dated August 3, 2009. (Docket #2-2 at 28-30.) Plaintiff does not allege that the errors in his July 24 plan adversely affected his employment or receipt of public assistance benefits in any material way.
Furthermore, plaintiff pleads no facts to demonstrate the required causal connection between his June 27, 2008 NYSDHR complaint and any later adverse employment action. See Jackson, 709 F. Supp. 2d at 228 (dismissing pro se retaliation claim where plaintiff "allege[d] no facts to plausibly suggest that "she suffered an adverse employment action, or that there was a causal connection between her complaints [with the NYSDHR] and an adverse employment action"). Indeed, plaintiff does not allege that the individual HRA case workers who prepared his plan were adversely affected by his filing of his June 2008 complaint such that they would have reason to retaliate against him in intentionally preparing erroneous employability plans later on. See, e.g., Alers v. Human Res. Admin., 2008 WL 4415246, at *8 (E.D.N.Y. Sept. 24, 2008) (dismissing retaliation claim against HRA where plaintiff offered only "vague arguments" that HRA employees retaliated against him for filing worker's compensation claim).
For the reasons set forth above, defendant's motion for judgment on the pleadings as to plaintiff's claim of retaliation is granted.
III. Plaintiff Cannot Recover Against the City of New York Under Section 1983
Plaintiff names only the HRA as defendant in his Complaint. (Docket #2 at 1-2.) Were this Court to construe plaintiff's claims as having been asserted against the City of New York for Monell-type violations under 42 U.S.C. § 1983, plaintiff still fails to state a claim for municipal liability. Under such a theory, a plaintiff may sue a municipality under section 1983 when the allegedly unlawful action was pursuant to an official policy or custom. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 689-91 (1978). "Monell does not provide a separate cause of action," but rather "extends liability" where a municipal organization's policies "led to an independent constitutional violation." Segal v. City of N.Y., 459 F.3d 207, 219 (2d Cir. 2006) (emphasis in original) (citing Monell, 436 U.S. at 694). Because plaintiff's potential claims against the City of New York depend upon the existence of independent violations of the Constitution or federal law—and as this Court has found that none have been stated—plaintiff's Monell-type claims are likewise dismissed. See id. (affirming dismissal of plaintiff's Monell claims where district court "properly found no underlying constitutional violation").
For the reasons set forth above, defendant's motion for judgment on the pleadings is GRANTED. (Docket #19.) The Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this Order would not be taken in good faith, and therefore in forma pauperis status is denied for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). The Clerk of the Court is directed to enter judgment in favor of the defendant.
Defendant's counsel is directed to provide to plaintiff copies of all unreported cases cited herein.
SO ORDERED. Dated: New York, New York
December 6, 2011
P. Kevin Castel
United States District Judge