Opinion
5:22-CV-0761 (BKS/ML)
04-04-2023
JERAMIAH BROWN, Plaintiff, v. FAT DOUGH INCORP., doing business as Dominos Pizza, Defendant.
APPEARANCES: OF COUNSEL: JERAMIAH BROWN Plaintiff, Pro Se
APPEARANCES: OF COUNSEL: JERAMIAH BROWN Plaintiff, Pro Se
ORDER
Miroslav Lovric U.S. Magistrate Judge
REPORT and RECOMMENDATION
The Clerk has sent this pro se Amended Complaint (Dkt. No. 7) filed by Jeramiah Brown (“Plaintiff”) to the Court for review. For the reasons discussed below, I recommend that Plaintiff's Amended Complaint (Dkt. No. 7) be (1) accepted in part for filing, and (2) dismissed (a) in part with leave to amend, and (b) in part without leave to amend.
I. BACKGROUND
Construed as liberally as possible, Plaintiff's Amended Complaint-which was completed on a form complaint alleging violations of Title VII of the Civil Rights Act, as amended (“Title VII”)-alleges that his civil rights were violated by Fat Dough Incorp., doing business as Dominos Pizza (“Defendant”). (See generally Dkt. No. 7.)
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 he was discriminated against based on his sex (or sexual harassment), his national origin, and his disability. (Dkt. No. 7 at 2.) Plaintiff alleges that the conduct complained of in this action includes the termination of his employment, unequal terms and conditions of his employment, retaliation, and harassment. (Id.)
Plaintiff alleges that he identifies as gender non-binary, his national origin is Norwegian, he was born with thrombocytopenia with absent radius, and he was diagnosed with traumatic brain injury in 2014. (Dkt. No. 7 at 3.) Plaintiff alleges that he was employed by Defendant on October 8, 2021. (Id.) Plaintiff alleges that as part of his employee training, he was required to “shadow” a delivery driver named Megan, who stole Plaintiff's “delivery change” and discriminated against Plaintiff's “National Origin ethnicity.” (Id.)
Plaintiff does not state his preferred pronouns. As a result, the undersigned used he/him pronouns throughout this Report and Recommendation.
It is unclear whether Plaintiff intended to allege that he began his employment with Defendant on October 8, 2021, or merely that on that specific date, he was employed by Defendant.
Plaintiff alleges that he was harassed by co-worker and supervisor Richard Filkins “on occasions” and Mr. Filkins asked Plaintiff about his sexual orientation “on [n]umerous [o]ccasions.” (Id.) Plaintiff alleges that Mr. Filkins asked Plaintiff for sexual favors and when Plaintiff refused, Mr. Filkins retaliated by assigning Plaintiff to work with Megan. (Id.)
Plaintiff alleges that he reported feeling uncomfortable and harassed by Megan and Mr. Filkins to his “Widow Grandmother” and to his manager Martin Wilder. (Id.) Plaintiff alleges that on October 14, 2021, he filed “an open door policy complaint about the harassment from [e]mployees” including sexual harassment by Mr. Filkins and Megan taking money that did not belong to her. (Id. at 4, 6.)
Plaintiff alleges that on October 27, 2021, co-worker Ethan Talley threw dirty water and mushrooms at Plaintiff. (Id. at 4.) Plaintiff alleges that unnamed other employees laughed and humiliated Plaintiff and stated that Plaintiff would allow other employees to treat him poorly because Plaintiff is disabled. (Id.) Plaintiff alleges that he reported the incident to Mr. Wilder, but that Mr. Wilder yelled at Plaintiff for sitting outside on a bench. (Id.) Plaintiff alleges that Mr. Wilder did nothing to resolve the harassment. (Id.) Plaintiff alleges that he also reported the harassment to another supervisor named Dorothy. (Dkt. No. 7 at 11.)
Plaintiff alleges that he asked for earlier day shifts to accommodate his disability and to avoid working with Mr. Filkins. (Dkt. No. 7 at 6.) Plaintiff alleges that on October 19, 2021, he was scheduled to work an earlier shift and Mr. Filkins created a hostile work environment yelling, screaming, and questioning why Plaintiff was scheduled for an earlier shift. (Id.)
Plaintiff alleges that on October 22, 2021, he was assigned the role of dishwasher, which was a demotion from his role of delivery driver, in retaliation for filing an open-door policy complaint with Defendant. (Dkt. No. 7 at 9.) Plaintiff alleges that he was assigned the dishwasher role from October 22, 2021, until October 28, 2021. (Id.) Plaintiff alleges that before his reassignment to dishwasher on October 22, 2021, an employee used a toilet plunger as a door stopper, which caused the door to “maliciously close” on Plaintiff when Plaintiff was leaving and entering to deliver pizzas. (Id.) Plaintiff alleges that Brian Galloway and Martin Wilder “made unequal terms of employment” for Plaintiff by assigning him to the role of dishwasher and yelling at him for not being fast enough to be a delivery driver. (Dkt. No. 7 at 4.)
Plaintiff alleges that on October 28, 2021, another employee of Defendant's broke into Plaintiff's car and drew a smiley face with pizza grease on the inside windshield. (Dkt. No. 7 at 4.) Plaintiff alleges that he reported the car break-in to Defendant's manager and supervisor Mr. Wilder and Dorothy. (Id.) Plaintiff alleges that he also notified the Fort Drum military police about his car being broken into. (Id. at 3.) Plaintiff alleges that the managers failed to properly investigate who broke into his vehicle and, instead, Mr. Wilder told Plaintiff to go home early “in a hostile way” and informed Plaintiff he would never work for Defendant again because Plaintiff reported the incident to police. (Id. at 11.)
Plaintiff alleges that on October 28, 2021, and October 29, 2021, Brian Galloway told Plaintiff to “never show up for a shift again” and explained to Plaintiff that he was not “allowed to work” at Defendant again because Plaintiff involved the police. (Id. at 11.)
Based on these factual assertions, Plaintiff appears to assert the following seven causes of action (1) a claim that Plaintiff was discriminated and retaliated against in violation of Titles I, II, and V of the Americans with Disabilities Act (“ADA”); (2) a claim that Plaintiff's equal rights under the law were violated pursuant to 42 U.S.C. § 1981; (3) a claim that Plaintiff endured a hostile work environment in violation of Title VII; (4) a claim that employees of Defendant retaliated against Plaintiff for filing an open door policy claim and notifying the Fort Drum military police of the pizza grease incident in violation of Title VII; (5) a claim of discrimination pursuant to Section 504 of the Rehabilitation Act; (6) a claim that Defendant's employee Brian Galloway violated the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (“ADEA”); (7) a claim of sexual harassment by Mr. Filkins in violation of Title VII. (Dkt. No. 7 at 12-15.)
The Court notes that although Plaintiff incorrectly alleges that the Equal Employment Opportunity Commission (“EEOC”) Notice-of-Right-to-Sue letter was attached to the Amended Complaint (Dkt. No. 7 at 4), the EEOC Notice of Right to Sue letter appears to be attached to the Complaint. (Dkt. No. 1, Attach. 1 at 1-2.) Construing the Amended Complaint liberally, the undersigned considered the EEOC Notice of Right to Sue letter notwithstanding that “an amended complaint ordinarily supersedes the original.” Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994).
As relief Plaintiff seeks $200,000.00 in damages. (Dkt. No. 7 at 12.)
On October 17, 2022, the undersigned issued an Order and Report-Recommendation that (1) granted Plaintiff's leave to proceed in forma pauperis, (2) denied Plaintiff's motion for appointment of counsel, and (3) recommended that Plaintiff's Complaint be dismissed with leave to replead for failure to state a claim upon which relief may be granted. (Dkt. No. 6.) On October 31, 2022, Plaintiff filed an amended complaint. On November 7, 2022, Chief United States District Judge Brenda K. Sannes issued a memorandum-decision and order that reviewed the undersigned's Report-Recommendation and found no clear error but, nonetheless, rejected the Report-Recommendation as moot in light of Plaintiff's Amended Complaint which superseded the original in all respects. (Dkt. No. 8.)
II. 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.”).
III. 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 Amended Complaint with this principle in mind, I recommend that a response be required to certain of Plaintiff's claims and that other claims be dismissed.
A. Plaintiff's Claims Pursuant to the ADA ]
Title IV of the ADA does not appear to be applicable to Plaintiff's claims because Title IV prohibits disability discrimination in telecommunications. Genco v. Sargent & Collins LLP, 18-CV-0107, 2018 WL 3827742, at *3 n.5 (W.D.N.Y. June 4, 2018). The Amended Complaint does not appear to assert a claim pursuant to Title III of the ADA, however, to the extent that it is liberally construed as making such a claim, I recommend that it be dismissed. Title III of the ADA prevents discrimination based on a disability in places of public accommodation. 42 U.S.C. § 12182. The term “public accommodation” includes “an inn, hotel, motel, or other place of lodging ....” 42 U.S.C. § 12181(7)(A); see Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1014 (6th Cir. 1997) (“[T]he statutory framework of the ADA expressly limited discrimination in employment practices to Title I of the ADA,” and holding that Title III of the ADA is inapplicable to employment discrimination claims). Moreover, “Title III provides a private right of action for injunctive relief but no right of action for monetary relief.” Guarneri v. Schoharie Cnty. Dep't of Soc. Servs., 21-CV-0991, 2021 WL 6050305, at *10 (N.D.N.Y. Dec. 21, 2021) (Lovric, M.J.) (citing 42 U.S.C. § 12188; Krist v. Kolombos Rest. Inc., 688 F.3d 89, 94 (2d Cir. 2012) (holding that Title III of the ADA “authorizes private actions only for injunctive relief, not monetary damages.”); Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 86 (2d Cir. 2004) (“Monetary relief . . . is not available to private individuals under Title III of the ADA.”); see also Ervine v. Deser View Reg'l Med. Ctr. Holdings, LLC, 753 F.3d 862, 867 (9th Cir. 2014) (“Damages are not an available remedy to individuals under Title III of the ADA; individuals may receive only injunctive relief.”)), report and recommendation adopted by, 2022 WL 1472562 (N.D.N.Y. May 10, 2022) (McAvoy, J.).
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).
A plaintiff challenging disability-based discrimination under the ADA must establish a prima facie case, which consists of a showing that: “(1) his employer is subject to the ADA; (2) he was disabled within the meaning of the ADA; (3) he was otherwise qualified to perform the essential functions of his job, with or without reasonable accommodation; and (4) he suffered adverse employment action because of his disability.” Woolf v. Strada, 949 F.3d 89, 93 (2d Cir. 2020).
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 II
“Title II of the ADA proscribes discrimination against the disabled in access to public services.” Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009). To plead a violation of Title II of the ADA, a plaintiff must allege “(1) that [she] is a qualified individual with a disability; (2) that [she] was excluded from participation in a public entity's services, programs, or activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or discrimination was due to [her] disability.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir. 2009) (quoting Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003)) (internal quotation marks omitted). The public entities defined in the ADA are state or local governments and their instrumentalities. 42 U.S.C. § 12131(1). Private entities are not subject to the provisions of Title II even if they receive government funding. Brennan v. NCAComp Inc., 22-CV-012, 2022 WL 4290660, at *7 (N.D.N.Y. Apr. 25, 2022) (Lovric, M.J.), report-recommendation adopted, 2022 WL 3097843 (N.D.N.Y. Aug. 4, 2022) (Suddaby, C.J.) (citations omitted).
“The structure of the ADA demonstrates Congress' clear intent for Title II not to apply to employment claims.” Scherman v. New York State Banking Dep't, 09-CV-2476, 2010 WL 997378, at *8 (S.D.N.Y. Mar. 19, 2010). For example, “Title I defines a ‘qualified individual' with a disability in terms of employment, [while] Title II defines it on the basis of a person's ability to receive services or participate in programs or activities.” Scherman, 2010 WL 997378, at *8 (citing Zimmerman v. Oregon Dep't of Just., 170 F.3d 1169, 1176 (9th Cir. 1999)). Moreover “if employment discrimination claims were allowed to be brought under ADA Title II, Title I would become redundant.” Id. at *9. Thus, “Title II of the ADA does not apply to employment discrimination.” Id. at *10; see Mary Jo C. v. New York State and Local Retirement Sys., 707 F.3d 144, 171 (2d Cir. 2013) (“[W]e conclude that the statute unambiguously limits employment discrimination claims to Title I.”).
As a result, I recommend that, to the extent the Amended Complaint is construed as alleging a claim pursuant to Title II of the ADA, it be dismissed because Plaintiff's claims relate solely to his interactions with Defendant as an employer.
In the alternative, I recommend that Plaintiff's claim pursuant to Title II of the ADA be dismissed for failure to state a claim upon which relief may be granted. The Amended Complaint fails to allege facts plausibly suggesting that Plaintiff experienced discrimination in accessing public services. (See generally Dkt. No. 7.) In addition, the Amended Complaint fails to allege facts plausibly suggesting that Defendant is a public entity subject to the provisions of Title II of the ADA. As a result, I recommend that, to the extent the Amended Complaint is construed as alleging a claim pursuant to Title II of the ADA, it be dismissed for failure to state a claim upon which relief may be granted. See Chavous v. Housing Visions Unlimited, Inc., 22-CV-0811, 2022 WL 9967833, at *4 (N.D.N.Y. Oct. 17, 2022) (Dancks, M.J.) (recommending that the plaintiff's Title II ADA claim be dismissed because the complaint was “devoid of factual allegations plausibly suggesting [that the d]efendants are public entities” or that the plaintiff “was unable to access public programs due to her disability, how her disability prevented her from accessing the programs, or what accommodations she sought and was denied by” the defendants), report and recommendation adopted by, 2023 WL 1775699 (N.D.N.Y. Feb. 6, 2023) (Nardacci, J.).
3. Title V
A prima facie retaliation claim under the ADA requires four elements: (1) that the plaintiff engaged in activity protected by the ADA, (2) the employer must be aware of that activity, (3) the employer must have taken an adverse employment action against the plaintiff, and (4) and there must be a causal connection between the alleged adverse action and the protected activity. Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002). The plaintiff must show “a reasonable employee would have found the challenged action materially adverse.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
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 ADA Title V retaliation claim.
B. Claim Pursuant to 42 U.S.C. § 1981
“To establish a claim under 42 U.S.C. § 1981, a plaintiff must establish the following elements: (1) she is a member of a racial minority; (2) the defendant intended to discriminate against her on the basis of race; and (3) discrimination concerned ‘one of the statute's enumerated activities.'” Gatling v. West, 850 Fed.Appx. 91, 96 (2d Cir. 2021) (summary order) (quoting Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000)). “The enumerated activities include the rights ‘to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.'” Gatling, 850 Fed.Appx. at 96-97 (quoting 42 U.S.C. § 1981(a)). In addition, “a plaintiff must initially plead and ultimately prove that, but for race, [he] would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020).
A claim of discrimination under Section 1981 requires a showing of intentional discrimination. Gen. Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391 (1982). Therefore, at the pleading stage, a plaintiff must “specifically allege the ‘circumstances giving rise to a plausible inference of racially discriminatory intent.'” Wade v. Kay Jewelers, Inc., 17-CV-0990, 2018 WL 4440532, at *7 (D. Conn. Sept. 17, 2018) (quoting Yusuf v. Vassar Coll., 35 F.3d 709, 713 (2d Cir. 1994)).
Here, the Amended Complaint fails to allege facts plausibly suggesting that Plaintiff was discriminated against on the basis of race. (See generally Dkt. No. 7.) Plaintiff alleges that his “National Origin is Norwegian” (Dkt. No. 7 at 3), but fails to allege any facts plausibly suggesting that he is a member of a minority-race or that any discriminatory action occurred because of his race. (See generally Dkt. No. 7.)
As a result, I recommend that Plaintiff's discrimination claim pursuant to 42 U.S.C. § 1981 be dismissed.
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); see also Bostock v. Clayton Cnty., Georgia, 140 S.Ct. 1731, 1747 (2020) (concluding “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”).
Plaintiff appears to assert three claims pursuant to Title VII. More specifically, Plaintiff appears to allege (1) one claim of a hostile work environment based on disability discrimination perpetuated by his co-workers and supervisors, (2) one claim of sexual harassment perpetuated by Mr. Filkins that Defendant was aware of and permitted to continue, and (3) one claim of retaliation. (See generally Dkt. No. 1.)
1. Hostile Work Environment
To state a prima facie case of discrimination under Title VII, a plaintiff must allege “(1) he belonged to a protected class; (2) he was qualified for the position he held; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent.” Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). “Specifically, Plaintiff must show either that he suffered an adverse job action under circumstances giving rise to an inference of discrimination on the basis of race, color, religion, sex, or national origin, or . . . demonstrate that harassment on one or more of these bases amounted to a hostile work environment.” Morren v. New York Univ., 20-CV-10802, 2022 WL 1666918, at *14 (S.D.N.Y. Apr. 29, 2022) (quoting Feingold v. New York, 366 F.3d 138, 149 (2d Cir. 2004)), report and recommendation adopted, 2022 WL 1665013 (S.D.N.Y. May 25, 2022).
“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, 366 F.3d at 149-50.
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 hostile work environment claim pursuant to Title VII.
2. Sexual Harassment
Title VII makes it unlawful for a covered employer to “discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment, because of,” inter alia, “such individual's . . . sex[.]” 42 U.S.C. § 2000e-2(a)(1). Title VII's prohibition against sexual discrimination includes sexual harassment. Redd v. New York Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012). “For sexual harassment to be actionable, it must be sufficiently severe or pervasive to alter the conditions of [the victim's] employment and create an abusive working environment.” Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986). “[T]he kinds of workplace conduct that may be actionable . . . include [u]nwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.” Meritor Sav. Bank, 777 U.S. at 65.
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 sexual harassment claim pursuant to Title VII.
3. Retaliation
To state a prima facie case of retaliation pursuant to Title VII, a plaintiff must establish that: (1) she participated in a protected activity; (2) her protected activity was known to her employer; (3) the employer thereafter subjected her to a materially adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. See Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552 (2d Cir. 2010). “An adverse employment action that may not be discriminatory may still be retaliatory, and therefore unlawful.” Goldson v. Kral, 13-CV-2747, 2016 WL 1241526, at *6 (S.D.N.Y. Mar. 24, 2016). Internal complaints are sufficient to satisfy the first prong as protected activity. See McKenna v. Santander Inv. Sec., Inc., 21-CV-0941, 2022 WL 2986588, at *10 (S.D.N.Y. July 28, 2022) (“Protected activity need not consist of a formal complaint of discrimination; an ‘internal complaint to company management' can constitute a protected activity under Title VII.”). In addition, a police report regarding the harassing behavior in the work setting may be sufficient to satisfy the first prong as protected activity. See Williams v. City of New York, 99-CV-2697, 2006 WL 2668211, at *20 (E.D.N.Y. Sept. 11, 2006) (quoting Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989)) (finding that the “plaintiff engaged in a statutorily protected activity when she called the police to report” a sexual assault and noting that “the Second Circuit has recognized that ‘Congress sought to protect a wide range of activity in addition to the filing of a formal complaint' [with the EEOC or in the form of a lawsuit].”); Borrero v. Collins, 01-CV-6885, 2002 WL 31415511, at *14 (S.D.N.Y. 2002) (holding that the plaintiff engaged in a protected activity when she called the police to report harassment by a co-worker); DeWitt v. Lieberman, 48 F.Supp.2d 280, 292 (S.D.N.Y. 1999) (“Pursuing a criminal proceeding against an alleged harasser is also a form of ‘protected activity' for purposes of [a Title VII] retaliation claim.”); but see Castagna v. Luceno, 09-CV-9332, 2011 WL 1584593, at *11 n.7 (S.D.N.Y. Apr. 26, 2011) (declining “to address whether the filing of a police report constitutes protected activity” and noting that the “Second Circuit appears not to have addressed [the] issue” of whether “the filing of a police report can constituted protected activity” under Title VII, but noting that “various other circuit courts have considered the issue and held that a police report does qualify as protected activity.”)
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 retaliation claim pursuant to Title VII.
D. Plaintiff's Claim Pursuant to the Rehabilitation Act
In order to assert a violation of Section 504 of the Rehabilitation Act, a plaintiff must allege that (1) “he is a qualified individual with a disability”; (2) “[the defendant] is an entity subject to the act[ ]”; and (3) “he was denied the opportunity to participate in or benefit from [the defendant's] services, programs, or activities or [the defendant] otherwise discriminated against him by reason of his disability.” Wright v. N.Y. State Dep't of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (citation omitted). “Exclusion or discrimination may take the form of disparate treatment, disparate impact, or failure to make a reasonable accommodation.” B.C. v. Mount Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016) (citation omitted).
The Second Circuit has emphasized 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.'” 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)).
The Amended Complaint fails to allege facts plausibly suggesting that Defendant receives federal funds such that it would be subject to the Rehabilitation Act. (See generally Dkt. No. 7.) Although the Amended Complaint alleges that the “United Parcel Service Incorp received Financial Assistance numerous times from the Federal Government,” there does not appear to be any logical connection between the United Parcel Service and Defendant. (Dkt. No. 7 at 14.) As a result, I recommend that Plaintiff's Rehabilitation Act claims be dismissed. See Askins v. Weinberg, 19-CV-8793, 2022 WL 4567695, at *6 (S.D.N.Y. Sept. 29, 2022) (holding that the plaintiff sufficiently alleged that the defendant was “covered by Section 504” where the complained alleged that the defendant “participates in several federal . . . programs” and receives “Government Grants.”).
E. Claim Pursuant to the ADEA
The ADEA bars an employer from discharging an employee because of age. 29 U.S.C. § 623(a) (1976); Stanojev v. Ebasco Services, Inc., 643 F.2d 914, 919, 921-22 (2d Cir. 1981). ADEA claims are, like Title VII discrimination claims, reviewed under the McDonnell Douglas Corp. v. Green framework. 411 U.S. 792 (1973); Schnabel v. Abramson, 232 F.3d 83, 87 (2d Cir. 2000). To show discriminatory treatment, a “plaintiff must [first] establish a prima facie case of discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142 (2000). In the ADEA context, a plaintiff must show “(i) membership in the protected group (40 to 70 years of age); (ii) she was sufficiently qualified to continue holding her position; (iii) that she experienced adverse employment action, and (iv) that the action occurred under circumstances giving rise to an inference of discrimination.” Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir. 2012).
Here, the Amended Complaint fails to allege facts plausibly suggesting that Plaintiff is a member in the protected group. (See generally Dkt. No. 7.) As a result, I recommend that Plaintiff's claim pursuant to 29 U.S.C. § 623 be dismissed for failure to state a claim upon which relief may be granted. 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) (“The ADEA generally protects individuals over forty from age discrimination in employment.”).
The Amended Complaint fails to allege any facts regarding Plaintiff's age.
In the alternative, I recommend that Plaintiff's claim pursuant to 29 U.S.C. § 623 be dismissed because he fails to allege facts plausibly suggesting that any adverse action was taken against him because of his age. (See generally Dkt. No. 7.)
F. Other Statutes in the Amended Complaint
The Amended Complaint also references, inter alia, the following four statutes: (1) the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA”) (Dkt. No. 7 at 3), (2) the Workforce Investment Act, 29 U.S.C. § 2801 et seq. (“WIA”) (Dkt. No. 7 at 14); (3) the Equal Pay Act, 29 U.S.C. § 206 et seq. (“EPA”) (Dkt. No. 7 at 15); and (4) the Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq. (“GINA”) (Dkt. No. 7 at 15). However, to the extent that the Amended Complaint is liberally construed as asserting claims pursuant to those statutes, I recommend that they be dismissed.
1. FDCPA
To state a claim under the FDCPA, “a plaintiff must demonstrate that: (1) the plaintiff is a person who was the object of efforts to collect a consumer debt; (2) the defendant is a debt collector as defined in the statute; and (3) the defendant has engaged in an act or omission in violation of the FDCPA.” Felberbaum v. Sequium Asset Solutions, 21-CV-9513, 2023 WL 167559, at *3 (S.D.N.Y. Jan. 11, 2023) (citing Cohen v. Ditech Fin. LLC, 15-CV-6828, 2017 WL 1134723, at *3 (E.D.N.Y. Mar. 24, 2017)).
The Amended Complaint fails to allege facts plausibly suggesting that (1) Plaintiff is a person who was the object of efforts to collect a consumer debt, (2) Defendant is a debt collector, or (3) that Defendant engaged in an act or omission in violation of the FDCPA. (See generally Dkt. No. 7); Komatsu v. Urban Pathways, Inc., 22-CV-9080, 2023 WL 419699, at *9 (S.D.N.Y. Jan. 26, 2023) (citing 15 U.S.C. 1692e) (“In cases where the FDCPA applies, it prohibits deceptive and misleading practices by ‘debt collectors.'”). As a result, to the extent that the Amended Complaint is construed as alleging a claim pursuant to the FDCPA, I recommend that it be dismissed for failure to state a claim upon which relief may be granted.
2. WIA
The non-discrimination provision of the Workforce Investment Act of 1998 provides that
[n]o individual shall be excluded from participation in, denied the benefits of, subjected to discrimination under, or denied employment in the administration of or in connection with, any [program or activity funded under the Workforce Investment Act] because of race, color, religion, sex (except as otherwise permitted under title IX of the Education Amendments of 1972), national origin, age, disability, or political affiliation or belief.29 U.S.C. § 2938(a)(2). “But there is no private right of action under this section. Instead, the Secretary of Labor and Attorney General are charged with enforcement.” McCrudden v. E Trade Fin. Corp., 13-CV-8837, 2014 WL 3952903, at *4 (S.D.N.Y. Aug. 12, 2014) (citing 29 U.S.C. § 2938(b)-(c); Machie v. Nguyen, 824 F.Supp.2d 146, 151 (D.D.C. 2011); McGowan v. New Jersey, 08-CV-5841, 2009 WL 1687663, at *8 (D.N.J. June 16, 2009); Borrero-Rodriguez v. Montalvo-Vazquez, 275 F.Supp.2d 127, 132 (D.P.R. 2003)).
As a result, I recommend that, to the extent the Amended Complaint is construed as alleging a claim pursuant to the WIA, it be dismissed because there is no private right of action under the WIA.
3. EPA
The EPA prohibits employers from “discriminating among employees on the basis of sex by paying higher wages to employees of the opposite sex for ‘equal work.'” Chepak v. Metro. Hosp., 555 Fed.Appx. 74, 76 (2d Cir. 2014) (quoting 29 U.S.C. § 206(d); Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999)). To establish an EPA claim, a plaintiff must make an initial showing that “(1) the employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort and responsibility; and (3) the jobs are performed under similar working conditions.” Chepak, 555 Fed.Appx. at 76 (quoting Belfi, 191 F.3d at 135). “At the pleading stage . . . a plausible EPA claim must include ‘sufficient factual matter, accepted as true' to permit ‘the reasonable inference' that the relevant employees' job content was ‘substantially equal.'” E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 256 (2d Cir. 2014) (quoting Iqbal, 556 U.S. at 678). Substantial similarity is not based on mere “overlap in titles or classifications.” E.E.O.C., 768 F.3d at 255. Instead, a female employee's “actual job content” must be substantially equal to her male comparators. Id.
Here, the Amended Complaint is devoid of factual allegations plausibly suggesting that Defendant paid different wages to employees of the opposite sex from Plaintiff. As a result, to the extent that the Amended Complaint is construed as asserting a claim pursuant to EPA, I recommend that it be dismissed for failure to state a claim upon which relief may be granted.
4. GINA
GINA makes it unlawful for an employer “to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee . . . because of genetic information with respect to the employee.” 42 U.S.C. § 2000ff-1(a)(1). GINA defines “genetic information” to include: (1) an employee's genetic tests; (2) the genetic tests of the employee's family members; or (3) the manifestation of a disease or disorder in the employee's family members. See Grimes-Jenkins v. Consol. Edison Co. of New York, Inc., 16-CV-4897, 2017 WL 2258374, at *10 (S.D.N.Y. May 22, 2017) (citing 42 U.S.C. § 2000ff(4)), report and recommendation adopted by, 2017 WL 2709747 (S.D.N.Y. June 22, 2017). To establish a claim for genetic discrimination under GINA, plaintiff must plead and prove “(1) that she was an employee; (2) who was discharged or deprived of employment opportunities; (3) because of information from [her] genetic tests.” Allen v. Verizon Wireless, 12-CV-0482, 2013 WL 2467923, at *23 (D. Conn. June 6, 2013) (citation omitted).
The Amended Complaint fails to allege facts plausibly suggesting that Defendant had any knowledge of Plaintiff's genetic information or that Plaintiff was discharged or deprived or employment opportunities because of information from his genetic tests. As a result, to the extent that the Amended Complaint is construed as asserting a claim pursuant to GINA, I recommend that it be dismissed for failure to state a claim upon which relief may be granted.
IV. 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 pursuant to Title II of the ADA and WIA, I recommend that those claims be dismissed without leave to replead because the problem with those claims is substantive such that a better pleading will not cure it.
However, with respect to Plaintiff's claims pursuant to 42 U.S.C. § 1981, the Rehabilitation Act, ADEA, FDCPA, EPA, and GINA, 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.
The undersigned notes that Plaintiff has already amended the complaint once. (Compare Dkt. No. 1, with Dkt. No. 7.) However, Plaintiff did not receive the full benefit of the Court's review of the Complaint pursuant to 28 U.S.C. § 1915 because he filed an Amended Complaint before Chief Judge Sannes ruled on the undersigned's report and recommendation regarding the Complaint. (Dkt. Nos. 6, 7, 8.) In addition, the Amended Complaint appears to assert several additional causes of action that were not previously considered by the undersigned when analyzing the Complaint.
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 Amended 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)).
ACCORDINGLY, it is respectfully
RECOMMENDED that the Court DISMISS WITH LEAVE TO REPLEAD Plaintiff's Amended Complaint (Dkt. No. 7) to the extent that it asserts claims pursuant to (1) 42 U.S.C. § 1981, (2) the Rehabilitation Act, (3) ADEA, (4) FDCPA, (5) EPA, and (6) GINA, 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 the Court DISMISS WITHOUT LEAVE TO REPLEAD Plaintiff's Amended Complaint (Dkt. No. 7) to the extent that it asserts claims pursuant to (1) Title II of the ADA, and (2) WIA, 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 Amended Complaint (Dkt. No. 7) to the extent that it asserts claims pursuant to (1) Titles I and V of the ADA, and (2) Title VII of the Civil Rights Act amended alleging (a) a hostile work environment, (b) sexual harassment, and (c) retaliation; and it is further
ORDERED that the Clerk of the Court shall file a copy of this report and recommendation 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).