Opinion
22-cv-762 (BKS/TWD)
04-21-2023
JERAMIAH BROWN, Plaintiff, v. UPS UNITED PARCEL SERVICE INCORP. UPS HeadQuarters, and Robert Milne, Defendants.
Plaintiff pro se: Jeramiah Brown Theresa, NY 13691
Appearances:
Plaintiff pro se: Jeramiah Brown Theresa, NY 13691
MEMORANDUM-DECISION AND ORDER
HON. BRENDA K. SANNES, CHIEF UNITED STATES DISTRICT JUDGE:
I. INTRODUCTION
Plaintiff pro se Jeramiah Brown brings this action against Defendants UPS United Parcel Service Incorp. UPS HeadQuarters (“UPS”) and Robert Milne. (Dkt. No. 14). In the Second Amended Complaint (“SAC”), Plaintiff alleges violations of: Title VII of the Civil Rights Act (“Title VII”), 42 U.S.C. § 2000e et seq.; the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 621-634 (“ADEA”); the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA); the Workforce Investment Act, 29 U.S.C. § 2801 et seq. (“WIA”); the Equal Pay Act, 29 U.S.C. § 206 et seq. (“EPA”); the Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq. (“GINA”); and the Americans with Disabilities Act of 1990 (“ADA”), as amended, 42 U.S.C. § 12101 et seq. (Dkt. No. 14). The SAC was referred to United States Magistrate Judge Therese Wiley Dancks who, on March 28, 2023, issued a Report- Recommendation reviewing the SAC under 28 U.S.C. § 1915(e)(2)(b) and recommending that Plaintiff's SAC be accepted for filing to the extent it asserts claims under Title VII for hostile work environment, discriminatory discharge, and retaliation against Defendant UPS and that Defendant UPS be required to respond to those claims. (Dkt. No. 23, at 9-15). Magistrate Judge Dancks further recommended that to the extent the SAC asserted Title VII claims against Defendant Milne or any other individual identified in the SAC, such claims be dismissed with prejudice as there is no personal liability under Title VII. (Id. at 23 & n.3). Finally, Magistrate Judge Dancks recommended that all remaining claims be dismissed. (Id. at 15-20). On April 10, 2023, Plaintiff filed objections to the Report-Recommendation.
II. STANDARD OF REVIEW
This court reviews de novo those portions of the Magistrate Judge's findings and recommendations that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F.Supp.3d 223, 228-29 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C). “A proper objection is one that identifies the specific portions of the [report-recommendation] that the objector asserts are erroneous and provides a basis for this assertion.” Kruger v. Virgin Atl. Airways, Ltd., 976 F.Supp.2d 290, 296 (E.D.N.Y. 2013) (quotation omitted). Properly raised objections must be “specific and clearly aimed at particular findings” in the report. Molefe v. KLM Royal Dutch Airlines, 602 F.Supp.2d 485, 487 (S.D.N.Y. 2009) (citation omitted). “[E]ven a pro se party's objections to a Report and Recommendation must be specific and clearly aimed at particular findings in the magistrate's proposal ....” Machicote v. Ercole, No.
06-cv-13320, 2011 WL 3809920 at *2, 2011 U.S. Dist. LEXIS 95351, at *4 (S.D.N.Y. Aug. 25, 2011) (citation omitted). Findings and recommendations as to which there was no properly preserved objection are reviewed for clear error. Id.
III. DISCUSSION
As referenced above, Magistrate Judge Dancks recommended that Plaintiff's Title VII hostile work environment, discriminatory discharge, and retaliation claims proceed and “that a response be required” to those claims. (Dkt. No. 23, at 11-12, 15). In his “Objective,” Plaintiff provides the “Required Response for SAC Asserting three Claims pursuant to Title VII: (1) Hostile Work Environment (2) Discriminatory Discharge and (3) Retaliation.” (Dkt. No. 24, at 1-7). However, by “response,” Magistrate Judge Dancks meant that a summons should be issued, UPS should be served with the SAC, and UPS should be required to file an answer. No “response” by Plaintiff was required. As Plaintiff's submission reiterates the substance of his Title VII claim and does not otherwise object to the Report-Recommendation, the Court reviews for clear error only.
In recommending dismissal of Plaintiff's ADA discrimination claim for failure to state a plausible claim for relief, Magistrate Judge Dancks noted that “Plaintiff summarily asserts that he is ‘disabled' but does not explain how his disability ‘substantially limits a major life activity.'” (Dkt. No. 23, at 20). However, the SAC identifies Plaintiff's physical impairment; it alleges that Plaintiff was “born with thrombocytopenia with absent radius” (“TAR”) and that he suffered a “Traumatic Brain Injury in 2014.” (Dkt. No. 14, at 3). However, even assuming the allegations regarding Plaintiff's condition are sufficient to allege disability and that UPS was aware of Plaintiff's disability, any claim under the ADA fails because, as Magistrate Judge Dancks found, “Plaintiff has failed to plausibly allege that he was ‘otherwise qualified' for the Personal Seasonal Delivery Driver position with or without reasonable accommodation.” (Dkt. No. 23, at 20). Plaintiff has not objected to this finding, and having reviewed the remainder of Magistrate Judge Dancks' analysis for clear error and having found none, the Court adopts Magistrate Judge Dancks' recommendation that Plaintiff's ADA discrimination claim be dismissed.
Attached to the SAC is a proclamation by the Mayor of the City of Watertown, New York proclaiming April 2021 to be “TAR Syndrome Awareness Month.” (Dkt. No. 14, at 24). It states that TAR syndrome is characterized by the absence of a bone called the radius in each forearm and a shortage (deficiency) of blood cells involved in clotting (platelets),” that can lead to, among other things, hemorrhages in the brain. (Id.).
IV. CONCLUSION
For these reasons, it is hereby
ORDERED that Magistrate Judge Dancks' Report-Recommendation (Dkt. No. 23) is ADOPTED; and it is further
ORDERED that Plaintiff's second amended complaint (Dkt. No. 14) is ACCEPTED for filing to the extent it asserts claims pursuant to the Title VII of the Civil Rights Act alleging a hostile work environment, discriminatory discharge, and retaliation claim against Defendant UPS; and it further
ORDERED Plaintiff's Title VII claims against Defendant UPS SURVIVES initial review and require a response; and it is further
ORDERED that Plaintiff's Title VII claims asserted against Milne and other individuals identified in the second amended complaint but not listed as defendants are DISMISSED WITH PREJUDICE 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
ORDERED that all remaining claims be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further
ORDERED that the Clerk shall issue a summons for Defendant UPS and forward the summons, along with copies of the Second Amended Complaint, (Dkt. No. 14), the Report-Recommendation (Dkt. No. 23) and this Memorandum-Decision and Order, to the United States Marshal for service upon Defendant UPS. Defendant UPS shall file a response to the Second Amended Complaint as provided for in Rule 12 of the Federal Rules of Civil Procedure. And it is further
ORDERED that the Clerk serve a copy of this Order on Plaintiff in accordance with the Local Rules.
IT IS SO ORDERED.