Opinion
5:22-cv-00762 (BKS/TWD)
03-28-2023
JERAMIAH BROWN, Plaintiff, v. UPS UNITED PARCEL SERVICE, INCORP., Defendant.
JERAMIAH BROWN Plaintiff, pro se
JERAMIAH BROWN Plaintiff, pro se
ORDER AND REPORT-RECOMMENDATION
THERESE WILEY DANCKS, UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
On July 20, 2022, Jeramiah Brown (“Plaintiff”) commenced this pro se action against UPS United Parcel Service, Incorp. (“Defendant” or “UPS”) asserting claims under the Americans with Disabilities Act of 1990, as amended, 42 U.S.C. § 12101 et seq. (“ADA”). (Dkt. No. 1.) Plaintiff simultaneously moved for leave to proceed in forma pauperis (“IFP”) and for the appointment of counsel. (Dkt. Nos. 2, 3.)
On July 29, 2022, the undersigned issued an Order and Report-Recommendation (1) granting Plaintiff's IFP application for purposes of initial review, (2) denying Plaintiff's motion for the appointment of counsel without prejudice, and (3) recommending that Plaintiff's complaint be dismissed with leave to amend. (Dkt. No. 6 at 9-10.) Plaintiff filed objections. (Dkt. No. 7.) By Memorandum-Decision and Order issued September 6, 2022, the Hon. Brenda K. Sannes, Chief United States District Judge, adopted the Report-Recommendation and dismissed Plaintiff's complaint with leave to amend. (Dkt. No. 8.)
On September 20, 2022, Plaintiff filed the first amended complaint (“FAC”) asserting claims under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq. (“Title VII”). (Dkt. No. 9.) On October 12, 2022, the undersigned issued a Report-Recommendation and Order recommending, inter alia, dismissal of Plaintiff's FAC with leave to amend. (Dkt. No. 11.) Plaintiff filed objections. (Dkt. No. 12.) By Memorandum-Decision and Order issued November 7, 2022, Chief Judge Sannes adopted the Report-Recommendation in its entirety. (Dkt. No. 13.)
On December 5, 2022, Plaintiff filed the second amended complaint (“SAC”), which has been referred to the undersigned for review, along with a motion to proceed IFP. (Dkt. Nos. 14, 15.) For the reasons discussed below, the Court grants Plaintiff's IFP application and recommends that Plaintiff's SAC be accepted in part for filing and otherwise dismissed without further leave to amend.
II. IFP APPLICATION
A court may grant IFP status if a party “is unable to pay” the standard fee for commencing an action. 28 U.S.C. § 1915(a)(1). Upon review, Plaintiff has submitted a completed and signed IFP application, which demonstrates economic need. (Dkt. No. 15.) Accordingly, Plaintiff's IFP Application is granted.
Plaintiff should note that although the application to proceed IFP has been granted, he will still be required to pay fees that he may incur in this action, including copying and/or witness fees. At this juncture, and for reasons stated herein, the Court declines to recommend that the District Court issue a bar order under 28 U.S.C. § 1651. (See Dkt. No. 13 at 6.) See also Brown v. Fat Dough Incorp., No. 5:22-cv-00761 (BKS/ML), ECF Dkt. No. 12. Nevertheless, Plaintiff is reminded that proceeding IFP is a privilege that is extended to litigants at the discretion of the Court. See Brown v. Fat Dough Incorp., No. 5:22-cv-00761 (BKS/ML), ECF Dkt. No. 6 at 4-5.
III. SUFFICIENCY OF THE SAC
A. Standard of Review
“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)(B).
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).
Additionally, when reviewing a complaint, a court may look to the Federal Rules of Civil Procedure. Rule 8 of the Federal Rules of Civil Procedure provides that a pleading which sets forth a claim for relief must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The purpose of Rule 8 “is to give fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer, prepare an adequate defense and determine whether the doctrine of res judicata is applicable.” Hudson v. Artuz, No. 95-CV-4768, 1998 WL 832708, at *1 (S.D.N.Y. Nov. 30, 1998) (quoting Powell v. Marine Midland Bank, 162 F.R.D. 15, 16 (N.D.N.Y. 1995) (other citations omitted)). Although “[n]o technical form is required,” the Federal Rules make clear that each allegation contained in the pleading “must be simple, concise, and direct.” Fed.R.Civ.P. 8(d). Further, Rule 10 of the Federal Rules provides in pertinent part:
A party must state its claims or defenses in numbered paragraphs, each limited as far as practicable to a single set of circumstances. A later pleading may refer by number to a paragraph in an earlier pleading. If doing so would promote clarity, each claim founded on a separate transaction or occurrence - and each defense other than a denial - must be stated in a separate count or defense.Fed. R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of identification for referring to a particular paragraph in a prior pleading[.]” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y. 1999) (quotation marks and citations 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, No. 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.”).
B. Summary of the SAC
Construed liberally, the SAC alleges Plaintiff's civil rights were violated by UPS and Robert Milne (“Milne”). (Dkt. No. 14.) The SAC consists of a form complaint pursuant to Title VII, along with twenty-five additional single spaced typed pages. Id. The paragraphs are not numbered nor limited to a single set of circumstances. See id.
The SAC is materially similar to the FAC, except the SAC provides additional allegations in support of the previously dismissed Title VII claims. (Compare Dkt. No. 14 at 3, 6-23 with Dkt. Nos. 1 at 3, 9 at 6-14.)
Generally, Plaintiff alleges he was discriminated against based on his sex and disability. (Dkt. No. 14 at 2.) Plaintiff indicates 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 identifies as gender non-binary, was born with thrombocytopenia with absent radius (“TAR”), and was diagnosed with a traumatic brain injury in 2014. Id. at 3.
According to Plaintiff, he was hired by UPS as a “Personal Seasonal Delivery Driver” on November 1, 2021. Id. On November 3, 2021, he reported to duty at a UPS Warehouse in Watertown, New York. Id. Milne, an employee of UPS, “harassed” Plaintiff based on his “Age, weight, appearance, Disability, and Physical appearance” and “Sex and Sexual Orientation, and National Origin.” Id. at 3, 7. Milne “harassed” and asked Plaintiff questions about his disability, commented on the “thinness” of his hand, and inquired whether he would be able to fulfill the job duties of a Personal Seasonal Delivery Driver. Id. at 6. Milne “made” Plaintiff “wait in the office over 60 minutes” only to be told that he “could not work and would be scheduled a Road test” with Cole Worden (“Worden”), a UPS driver, the following day. Id. Plaintiff was not paid for November 3, 2021, and Ashely Janish (“Janish”), a UPS Regional Headquarter Human Resources Agent, did not respond to Plaintiff's emails about his concerns. Id. at 7-8.
Plaintiff alleges Milne “made degrading and humiliating Jokes to [Plaintiff] . . . due to Disability and Gender Identity based on plaintiff's appearance.” Id. at 6. Milne compared Plaintiff's appearance to that of “McKenzie”, a female Human Resource Agent for UPS who “oversees hiring and firing Seasonal Personal Drivers” for the Watertown warehouse. Id. at 6. Plaintiff claims Milne “created a hostile work environment” by yelling at McKenzie for hiring Plaintiff “due to the selections [Plaintiff] made on his Application with UPS . . . and due to [his] appearance” and because Plaintiff was hired instead of another employee's son. Id. at 6-7.
On November 4, 2021, Plaintiff reported to Worden for the Road test. Id. at 7. Plaintiff claims Worden “created unequal terms of conditions of employment” and a“Hostile Work environment” because only Plaintiff was “subjected to a Road test” due to his “Age, disability, Sex, Appearance and Gender Identity.” Id. Before the Road test, Worden made “inappropriate jokes and humiliated” Plaintiff about his “capabilities of handling packages.” Id. Worden also asked Plaintiff if he could “open his car door fast, Organize Packages Fast, Walk/Run Fast, Handle Customer interactions” and inquired how Plaintiff would “approach a Customer with Packages” and how Plaintiff would “arrive to work.” Id. On November 4, 2021, Janish refused to respond to Plaintiff's email requests and failed to address Plaintiff's questions and concerns about his employment, thereby creating a “hostile work environment.” Id. at 8.
On November 17, 2021, Plaintiff filed a New York State Division of Human Rights (“NYSDHR”) Complaint “due to the Unequal terms of Condition of employment, Human Resource retaliating to acknowledge [Plaintiff's] Employment Concerns, and Human Resource Discriminating against [Plaintiff] with employment opportunities and positions as a Seasonal Personal Delivery Driver hired on 11/01/2021 by” UPS. Id. at 8. However, “[n]othing was resolved” because McKenzie “lied and stated” Plaintiff was not an employee of UPS during a March 15, 2022, telephone conference between NYSDHR Investigator Tammy Reed, Plaintiff, McKenzie, and UPS's attorney, Ya Li, Esq., of Dismore and Shohl, LLP. Id. According to Plaintiff, the “evidence and exhibits” “show proof” that he is “still currently an employee of UPS.” Id.
Plaintiff states the Clerk “did not upload all of the exhibits correctly or accurately” and refers to “98 pages of Evidence with exhibits from A-G.” (Dkt. No. 14 at 23.) Out of special solicitude as a pro se litigant, the Court has considered the exhibits attached to the original complaint and FAC exhibits as part of its sufficiency review herein notwithstanding that “an amended complaint ordinarily supersedes the original, and renders it of no legal effect.” See Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d Cir. 1994).
After the March 15, 2022, telephone conference, the “harassment” from UPS employees “increased.” Id. at 9. His property was “destroyed, littered, and individuals were stalking [Plaintiff's] property and residency.” Id. In the summer of 2022, after Plaintiff received a “right to sue letter” and filed his original complaint, “flowers were destroyed that [Plaintiff] planted in memory of a family death.” Id.
Additionally, although Plaintiff made a “confidential report” on December 10, 2021, via the UPS Help Line, “no one” from UPS has tried to follow-up with Plaintiff regarding his employment concerns and issues. Id.
As a result of the foregoing, Plaintiff has “lost wages” and “accumulated living expense debts and other debt” including costs for winter apparel that he bought for the Seasonal Personal Delivery Driver position and moving related expenses. Id. at 9-10. As relief, Plaintiff seeks $300,000.00 in damages. Id. at 10. For a more complete summary, reference is made to the SAC.
C. Claims Pursuant to Title VII
Title VII 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 Cty., 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”).
The Court liberally construes the SAC as asserting three claims pursuant to Title VII: (1) hostile work environment, (2) discriminatory discharge, and (3) retaliation. (Dkt. No. 14 at 1214.)
1. Individual Liability
As an initial matter, “individual defendants cannot be held personally liable under Title VII.” Milner-Koonce v. Albany City Sch. Dist., No. 1:21-CV-1271 (LEK/CFH), 2022 WL 7351196, at *3 (N.D.N.Y. Oct. 13, 2022) (citing Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 221 (2d Cir. 2004) (affirming the district court's dismissal of “Title VII claims against the individual defendants”) (other citations omitted)); Chisholm v. Stryker, No. 22-CV-2705(JMA) (SIL), 2022 WL 3647288, at *4 n.2 (E.D.N.Y. Aug. 24, 2022) (“[I]t is long established that individuals are not subject to liability under Title VII.”).
As such, it is recommended that any Title VII claims against Milne be dismissed with prejudice. See 28 U.S.C. § 1915(e)(2)(B).
Worden, Janisch, and McKenzie are not listed as defendants in the caption of the SAC. (See Dkt. No. 14 at 1.) To the extent the SAC could be construed as asserting Title VII claims against Worden, Janish, or McKenzie, the Court also recommends dismissing any claims with prejudice because, as noted, “individual defendants cannot be held personally liable under Title VII.” Chauca v. Abraham, 841 F.3d 86, 89, n.1 (2d Cir.) (citation omitted). See 28 U.S.C. § 1915(e)(2)(B).
2. 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-recommendation adopted, 2022 WL 1665013 (S.D.N.Y. May 25, 2022).
“To state 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.
On initial review of the FAC, this Court found Plaintiff failed to plausibly allege Defendants' conduct was motivated by a protected characteristic. (Dkt. No. 11 at 12.) For example, in the FAC Plaintiff claimed Milne, Janish, and McKenzie treated him unfairly on November 3, 2021, because of his “[s]ex and [s]exual orientation.” Id. But “Plaintiff advanced no specific factual allegations indicating what Defendants did or said to suggest the alleged harassment on November 3, 2021, was motivated by his sex and sexual orientation.” Id. As such, the undersigned found that “[a]bsent some non-conclusory factual allegations linking Defendants' conduct to Plaintiff's sex or sexual orientation, the FAC fails to state a claim for hostile work environment.” Id. See, e.g., Merisier v. Kings Cty. Hosp., No. 16-CV-7088, 2017 WL 4857565, at *2 (E.D.N.Y. Oct. 25, 2017) (“As Merisier has not adequately alleged that she was discriminated against on the basis of her membership in a protected class, the complaint, as filed, fails to state a claim for relief and must be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).”); Fox v. Albany Med. Ctr., No. 1:17-CV-0798 (TJM) (DEP), 2017 WL 4417751, at *3 (N.D.N.Y. Sept. 11, 2017) (recommending the dismissal of plaintiff's hostile work environment claim because “there [wa]s nothing in her complaint to link the harassment she experienced with any protected classification”), report-recommendation adopted, 2017 WL 4417679 (N.D.N.Y. Oct. 3, 2017).
Here, Plaintiff again alleges that on November 3, 2021, UPS employees Milne, Janish, and McKenzie treated him unfairly and “created a hostile work environment” and adds more details about what Milne allegedly said to Plaintiff including that his body and hands were “thin”; he “looked and sounded feminine”; he looked like McKenzie, a female; and he should be “working behind a desk.” (See, e.g., Dkt. No. 14 at 6.)
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 191 (2d Cir. 2008), and without expressing an opinion as to whether Plaintiff can withstand a properly filed motion to dismiss or for summary judgment, the Court recommends that a response be required to Plaintiff's hostile work environment claim pursuant to Title VII.
3. Discriminatory Discharge
As set forth above, Title VII prohibits an employer from discriminating “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). To make out a prima facie case of discrimination under Title VII, 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, 673 F.3d at 150.
While Plaintiff is not required to make out a prima facie case of discrimination at the pleading stage, he must allege facts that “give plausible support to a minimal inference of discriminatory motivation.” Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015); see generally Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007) (concluding plaintiff failed to state a claim where she “failed to plead any facts that would create an inference that any adverse action taken by any defendant was based upon her gender”).
As noted, on initial review of the FAC, this Court found Plaintiff failed to plausibly allege the conduct at issue was motivated by a protected characteristic. (Dkt. No. 11 at 12.) See, e.g., Weekes v. JetBlue Airways Corp., No. 21-CV-1965, 2022 WL 4291371, at *9 (E.D.N.Y. Sept. 16, 2022) (dismissing plaintiff's Title VII discrimination claim as inadequately pled because he did not “allege any facts that would permit the Court to infer causation between Plaintiff's membership in any protected class and the adverse employment actions he faced”); Boza-Meade v. Rochester Hous. Auth., 170 F.Supp.3d 535, 554 (W.D.N.Y. 2016) (same).
Here, construed liberally, Plaintiff alleges he was subjected to adverse employment actions because of his appearance and gender identity that no other Personal Seasonal Delivery Driver was subjected to and he was not scheduled for shifts. (Dkt. No. 14 at 7.)
Out of an abundance of caution, mindful of the Second Circuit's instruction that a pro se plaintiff's pleadings must be liberally construed, 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, the undersigned recommends that a response be required to Plaintiff's discriminatory discharge claim pursuant to Title VII.
4. Retaliation
“Title VII's antiretaliation provision forbids employer actions that ‘discriminate against' an employee (or job applicant) because he has ‘opposed' a practice that Title VII forbids or has ‘made a charge, testified, assisted, or participated in' a Title VII ‘investigation, proceeding, or hearing.'” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (quoting 42 U.S.C. § 2000e-3(a)). To state a prima facie case of retaliation pursuant to Title VII, a plaintiff must establish (1) he participated in a protected activity; (2) his protected activity was known to his employer; (3) the employer thereafter subjected him 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). “At the pleading stage, the allegations in the complaint need only give plausible support to the[se] . . . prima facie requirements.” Duplan v. City of New York, 888 F.3d 612, 625 (2d Cir. 2018); see also Belyea v. City of Glen Cove, No. 20-CV-5675, 2022 WL 3586559, at *12 (E.D.N.Y. Aug. 22, 2022). So, to adequately state a claim for Title VII retaliation at the pleading stage, a plaintiff must plausibly allege “(1) defendants discriminated-or took an adverse employment action-against him, (2) because he has opposed any unlawful employment practice.” Duplan, 888 F.3d at 625; see also Belyea, 2022 WL 3586559, at *13.
Both formal and internal complaints are sufficient to satisfy the first prong as protected activity. See McKenna v. Santander Inv. Sec., Inc., No. 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.”).
On initial review of the FAC, this Court found Plaintiff failed to adequately allege Defendants took an adverse employment action against him because he opposed an employment practice made unlawful by Title VII. (Dkt. No. 11 at 15.) In relevant part, Plaintiff alleged in the FAC that after he suffered an “adverse employment [action] from Robert Milne,” he complained about it to the NYSDHR. Id. at 13. In his objections, Plaintiff asserted for the first time that after filing the NYSDHR complaint, he suffered an adverse action, i.e., he was not scheduled for “future shifts.” (Dkt. No. 9 at 13-14, Dkt. No. 12 at 2; Dkt. No. 13 at 4.) The District Court noted that while an allegation of reduced hours may allow an inference that a plaintiff suffered an adverse action, Plaintiff's newly asserted factual allegations regarding denials of shifts did not save his retaliation claim because there were no allegations of retaliatory animus and Plaintiff did not indicate when Defendants allegedly denied Plaintiff shifts and, therefore, there was no basis for inferring causal connection based on the close temporal proximity between the filing of the NYSDHR complaint and the alleged denial of shifts. (Dkt. No. 13 at 5.) See, e.g., Feliciano v. City of New York, No. 14-cv-6751, 2015 WL 4393163, at *10 (S.D.N.Y. July 15, 2015 (“[W]hen no additional facts are pled, temporal proximity ordinarily requires that the allegedly retaliatory act occur within two months of the plaintiff's protected activity.”).
Now, in the SAC, construed liberally, Plaintiff alleges he made several informal complaints via email to Janish on November 3, 2021, and November 4, 2021, regarding the “hostile work environment” and “unequal terms” of employment, and thereafter, he was subjected to an adverse employment action.
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 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, the Court recommends that a response be required to Plaintiff's retaliation claim pursuant to Title VII.
D. Other Statutes in the SAC
The SAC also references, inter alia, the following six statutes: (1) the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 621-634 (“ADEA”); (2) the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. (“FDCPA); (3) the Workforce Investment Act, 29 U.S.C. § 2801 et seq. (“WIA”); (4) the Equal Pay Act, 29 U.S.C. § 206 et seq. (“EPA”); (5) the Genetic Information Nondiscrimination Act, 42 U.S.C. § 2000ff et seq. (“GINA”); and (6) the ADA. However, to the extent the SAC is liberally construed as asserting claims pursuant to those statutes, see Sealed Plaintiff, 537 F.3d at 191, the Court recommends that they be dismissed for the reasons set forth below.
See also Brown v. Fat Dough Incorp., No. 5:22-cv-00761 (BKS/ML), ECF Dkt. No. 14.
1. 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). In order to establish a prima facie case of age discrimination in violation of the ADEA, a plaintiff must show: (1) that she was within the protected age group (more than forty years old); (2) that she was qualified for the position; (3) that she experienced adverse employment action; and (4) that such action occurred under circumstances giving rise to an inference of discrimination. See Gorzynski v. Jet Blue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010) (citing Carlton v. Mystic Transp. Inc., 202 F.3d 129, 134 (2d Cir. 2000)).
Similar to Title VII, individuals are not subject to liability under the ADEA and the ADA. See Scalercio-Isenberg v. Morgan Stanley Servs. Grp. Inc., No. 19-CV-6034, 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 antidiscrimination statutes, including Title VII, the ADA, and the ADEA.”).
Here, Plaintiff does not allege that he is in a protected class, nor does he set forth any facts plausibly suggesting that his employment was terminated on the basis of his age. Plaintiff has therefore failed to allege a plausible claim for age discrimination under the ADEA, and the Court recommends dismissal pursuant to 28 U.S.C. § 1915(e)(2)(B).
2. 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, No. 21-CV-9513, 2023 WL 167559, at *3 (S.D.N.Y. Jan. 11, 2023) (citing Cohen v. Ditech Fin. LLC, No. 15-CV-6828, 2017 WL 1134723, at *3 (E.D.N.Y. Mar. 24, 2017)).
The SAC 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. 14.) See Komatsu v. Urban Pathways, Inc., No. 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 the SAC is construed as alleging a claim pursuant to the FDCPA, the Court recommends it be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
3. WIA
The non-discrimination provision of the WIA provides:
[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 WIA] 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. ETrade Fin. Corp., No. 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, No. 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, the Court recommends that, to the extent the SAC is construed as alleging a claim pursuant to the WIA, it be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
4. 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 SAC is devoid of factual allegations plausibly suggesting Defendant paid different wages to employees of the opposite sex from Plaintiff. As a result, to the extent the SAC is construed as asserting a claim pursuant to the EPA, the Court recommends that it be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
5. 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., No. 16-CV-4897, 2017 WL 2258374, at *10 (S.D.N.Y. May 22, 2017) (citing 42 U.S.C. § 2000ff(4)), reportrecommendation adopted, 2017 WL 2709747 (S.D.N.Y. June 22, 2017). To establish a claim under GINA, a plaintiff must plead and prove “(1) that []he was an employee; (2) who was discharged or deprived of employment opportunities; (3) because of information from [his] genetic tests.” Allen v. Verizon Wireless, No. 12-CV-0482, 2013 WL 2467923, at *23 (D. Conn. June 6, 2013) (citation omitted).
Here, the SAC fails to allege facts plausibly suggesting UPS or any employee had any knowledge of Plaintiff's genetic information or that Plaintiff was discharged or deprived of employment opportunities because of information from his genetic tests. As a result, to the extent the SAC is construed as asserting a claim pursuant to GINA, the Court recommends that it be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
6. ADA
The ADA prohibits covered employers from discriminating against “a qualified individual on the basis of disability in regard to,” among other things, “the hiring . . . or discharge of employees.” 42 U.S.C. § 12112(a); see generally 42 U.S.C. §§ 12111(2), (5) (defining “Covered entity” and “Employer”). It also prohibits covered employers from discriminating against a “qualified individual on the basis of disability” in the “terms, conditions, and privileges of employment.” 42 U.S.C. § 12112(a). The ADA also prohibits covered employers from discriminating “against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [the ADA].” 42 U.S.C. § 12203(a); see also Treglia v. Town of Manlius, 313 F.3d 713, 719 (2d Cir. 2002).
“[T]o establish the existence of a disability, a plaintiff must demonstrate that he or she suffers from a physical or mental impairment that ‘substantially limits one or more major life activities[.]'” Wega v. Ctr. for Disability Rts., No. 06-CV-6375, 2009 WL 3199684, at *7 (W.D.N.Y. Sept. 30, 2009) (quoting 42 U.S.C. § 12102(2)(A)), aff'd, 395 Fed.Appx. 782 (2d Cir. 2010) (summary order). “[M]ajor life activities include, but are not limited to, caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.” 42 U.S.C. § 12102(2)(A). “The mere presence of a medical condition does not establish that a plaintiff is disabled.” O'Donnell v. King B 100, LLC, No. 14-CV-1345 (TJM), 2016 WL 7742779, *9 (N.D.N.Y. May 3, 2016) (citations omitted).
On initial review of the original complaint, the Court found Plaintiff failed to state a claim for discriminatory discharge, failure to make reasonable accommodation, and retaliation under the ADA. (Dkt. Nos. 6, 8.) To the extent the SAC is liberally construed as asserting a claim pursuant to the ADA, the Court recommends that it be dismissed for failure to state a claim upon which relief may be granted. In short, Plaintiff has not cured the deficiencies identified in the July 29, 2022, Report-Recommendation. (Dkt. No. 6; see also Dkt No. 8.)
Here, Plaintiff summarily asserts that he is “disabled” but does not explain how his disability “substantially limits a major life activity.” Plaintiff has failed to plausibly allege that he was “otherwise qualified” for the Personal Seasonal Delivery Driver position with or without reasonable accommodation. (See generally Dkt. No. 14.) Nor has he plausibly alleged an adverse employment action by reason of his alleged disability. Id. There are no plausible allegations in the SAC to support a finding that UPS and its employees were aware of Plaintiff's alleged disability. See Hargrave v. Vermont, 340 F.3d 27, 34-35 (2d Cir. 2003) (elements of ADA and claims include the requirement that “discrimination was due to [plaintiff's] disability.” (citation omitted)).
As a result, to the extent the SAC is construed as asserting a claim pursuant to the ADA, the Court recommends that it be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B).
IV. CONCLUSION
For the reasons set forth herein, the Court finds only Plaintiff's Title VII claims against Defendant UPS survive initial review and require a response. Because Plaintiff has already been afforded two opportunity to amend, the Court recommends that all remaining claims be dismissed.
WHEREFORE, it is hereby
ORDERED that Plaintiff's motion to proceed IFP (Dkt. No. 15) is GRANTED; and it is further
RECOMMENDED that Plaintiff's second amended complaint (Dkt. No. 14) be 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 against Defendant UPS; and it further
RECOMMENDED Plaintiff's Title VII claims against Defendant UPS SURVIVE initial review and require a response; and it is further
RECOMMENDED that Plaintiff's Title VII claims asserted against Milne and other individuals identified in the second amended complaint but not listed as defendants be 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
RECOMMENDED that all remaining claims be DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B); and it is further
ORDERED that the Clerk serve a copy of this Order and Report-Recommendation on Plaintiff.
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. 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)); 28 U.S.C. § 636(b)(1) (Supp. 2013); Fed.R.Civ.P. 72, 6(a).
If you are proceeding pro se and are served with this Order and Report-Recommendation by mail, three additional days will be added to the fourteen-day period, meaning that you have seventeen days from the date the Order and Report-Recommendation 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. 6(a)(1)(C).
IT IS SO ORDERED.