Opinion
18-CV-3297 (GHW)(SN)
01-28-2019
JUSTIN MARCEL JIMENEZ, Plaintiff, v. CHASE BANK, et al., Defendants.
REPORT & RECOMMENDATION SARAH NETBURN, United States Magistrate Judge.
TO THE HONORABLE GREGORY H. WOODS, United States District Judge:
Plaintiff Justin Marcel Jimenez has sued JPMorgan Chase Bank, N.A. ("JPMC"), named as Chase Bank, JPMC's CEO Jamie Dimon, and John Fraser, the Chief Investment Officer of Junius Real Estate ("Junius"), a specialized real estate investment unit of JPMC. Broadly speaking, Jimenez alleges that JPMC discriminates against people of color by failing to hire minorities in management positions. Jimenez does not allege that he has ever worked at JPMC or applied to work there. Defendants move to dismiss this pro se complaint on the grounds of res judicata and failure to state a claim. This motion should be granted. The Court should dismiss all of Jimenez's claims with prejudice and without leave to amend, except it should dismiss his claim brought pursuant to section 804(c) of the Fair Housing Act without prejudice and with leave to amend.
FACTUAL BACKGROUND
In approximately 2014, Jimenez approached JPMC through its specialized real estate unit, Junius Real Estate, with a business proposal. Junius elected not to pursue the proposal and litigation ensued.
First, Jimenez sued Junius Real Estate, and JPMC employees John Fraser and Rich Gomel in a case filed in state court and removed to this Court. In that case, Jimenez alleged discrimination under the Civil Rights Act of 1960 and a violation of the Sherman Act. See Jimenez v. Junius Real Estate, et al., 16-cv-7483 (VEC)(JLC). The Court further construed Jimenez's complaint as possibly alleging a claim under 42 U.S.C. § 1981. Following a report and recommendation from Judge Cott, the District Court dismissed the case with prejudice and denied leave to amend on futility grounds.
Less than a year later, Jimenez filed a second lawsuit (also in state court), this time against "Chase Bank," "James Dimon," and John Fraser. Jimenez alleges that the Defendants:
violate the law under Title VII as a whole. Of the 24 individuals working at Chase Bank Headquarters in New York, only 2 employees within the company's upper management circles are of color. . . . Even more criminal is the firm Junius' exclusion of minority investors altogether. These two firms are not only violating discrimination laws and affirmative action mandates, they are also breaking fair housing laws through their lack of inclusive advertising and marketing on their online websites.Compl., ¶ 2. Jimenez claims that the Defendants are "guilty of discriminating against certain minority groups, especially Hispanic, Asian, Arab, and African Americans individuals with regards to employment." Jimenez alleges discrimination under Title VII of the Civil Rights Act of 1964 and the 14th Amendment to the U.S. Constitution. He further alleges civil rights violations under 42 U.S.C. § 1983, conspiracy to interfere with civil rights under 42 U.S.C. § 1985, and violations of the Fair Housing Act, the Fair Trade Commission Act, and New York Executive Law 632-a. Id. His complaint also cites violations of 18 U.S.C. §§ 241 & 242, and Executive Orders 8802, 10925, and 11246. He seeks damages "for a public tort," and an order "mandating that the defendants diversify their companies, and requiring that they provide the court with hiring plans and timetables of this aim." Notice at 2.
Defendants removed Jimenez's second action to this Court and moved to dismiss.
DISCUSSION
I. Failure to State a Claim
In considering a motion to dismiss pursuant to Rule 12(b)(6), a court must take "factual allegations [in the complaint] to be true and draw[] all reasonable inferences in the plaintiff's favor." Harris v. Mills, 572 F.3d 66, 71 (2d Cir. 2009) (citation omitted). To survive a motion to dismiss, a complaint must allege "enough facts to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 554, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation omitted). But a pleading that only "offers 'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555.) If the plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Twombly, 550 U.S. at 570.
Additionally, when faced with a pro se litigant, the Court must "construe [the] complaint liberally and interpret it to raise the strongest arguments that [it] suggest[s]." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010) (citation and internal quotation marks omitted). See Haines v. Kerner, 404 U.S. 519, 520-21 (1972). "Even in a pro se case, however . . . threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Chavis, 618 F.3d at 170 (internal quotation marks omitted). Thus, although the Court is "obligated to draw the most favorable inferences" that the complaint supports, it "cannot invent factual allegations that [the plaintiff] has not pled." Id.
A. Title VII of the Civil Rights Act of 1964
Title VII provides that "[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire or to discharge any individual, or otherwise 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). At the pleading stage in an employment discrimination case, "a plaintiff must plausibly allege that (1) the employer took adverse employment action against him, and (2) his race, color, religion, sex, or national origin was a motivating factor in the employment decision. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). The plaintiff "may do so by alleging facts that directly show discrimination or facts that indirectly show discrimination by giving rise to a plausible inference of discrimination." Id. at 87. The "existence of an employer-employee relationship is a primary element of Title VII claims." Gulino v. New York State Educ. Dep't, 460 F.3d 361, 370 (2d Cir. 2006).
Title VII includes a right to sue provision, which states that "a civil action may be brought . . . by the person claiming to be aggrieved." 42 U.S.C. § 2000e-5(f)(1). The term "aggrieved" in Title VII enables "suit by any plaintiff with an interest 'arguably [sought] to be protected by the statute.'" Thompson v. No. Am. Stainless, LP, 562 U.S. 170, 178 (2011) (quoting National Credit Union Admin. V. First Nat. Bank & Trust Co., 522 U.S. 479, 495 (1998)). Because the "purpose of Title VII is to protect employees from the employers' unlawful actions," id., to establish that he is an "aggrieved" person, Jimenez must allege that he has been injured by the Defendants' discriminatory employment conduct.
Jimenez is not an "aggrieved" person under Title VII. He does not allege that he has ever worked at JPMC or for the Individual Defendants, nor does he allege that he ever sought to work for the Defendants. In his opposition, Jimenez objects to this limitation, claiming that the violations are for "discrimination in general." Jimenez seems to believe that he can sue to remedy a "public tort" allegedly caused by JPMC's failure to diversify its "upper management" and its "exclusion of minority investors altogether." Title VII, however, expressly limits those individuals who can sue to persons who are "aggrieved." Because Jimenez cannot establish that he is an "aggrieved" person under Title VII who is entitled to bring a suit, he has failed to state a claim of employment discrimination under Title VII and this claim should be dismissed with prejudice.
B. Equal Protection Clause, 42 U.S.C. § 1983 and Criminal Civil Rights Statutes
The 14th Amendment to the U.S. Constitution contains the Equal Protection Clause. This provision "requires that the government treat all similarly situated people alike." Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (citing City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). "Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes 'state action.'" United States v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 941 F.2d 1292, 1295-96 (2d Cir. 1991) (citing Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). Similarly, in order to state a claim under § 1983, a plaintiff must allege that he was injured by either a state actor or a private party acting under color of state law.
Jimenez fails to allege that the private corporation (JMPC) and private individuals (Dimon and Fraser) are state actors or that they acted under color of state law. Indeed, nothing in his complaint suggests that the Defendants acted in concert with a state actor to commit an unconstitutional act. See Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002). Accordingly, Jimenez's claims under the Equal Protection Clause and 42 U.S.C. § 1983 necessarily fail. They should be dismissed with prejudice.
Jimenez also pleads a claim under the criminal statute prohibiting civil rights violations. See 18 U.S.C. § 242. In addition to failing to establish that the Defendants acted under color of state law, which is an element under § 242, Jimenez may not sue under this criminal statute. Such crimes may be prosecuted only by the government, not by private parties. See Connecticut Action Now, Inc. v. Roberts Plating Co., 457 F.2d 81, 86-87 (2d Cir. 1972). For this same reason, Jimenez may not bring a civil claim under the criminal statute that prohibits conspiracy to violate the civil rights of others. See 18 U.S.C. § 241. See Hill v. Didio, 191 F. App'x 13, 14-15 (2d Cir. June 20, 2006) (recognizing that there is no private right of action under 18 U.S.C. §§ 241, 242) (citing cases).
C. Civil Rights Conspiracy
Jimenez sues under 42 U.S.C. § 1985. This statute prohibits two or more persons from conspiring to violate the civil rights of others. Unlike a claim under § 1983, § 1985 does not require that the conspirators acted under color of state law. To establish a claim under § 1985, plaintiff must plead: (1) the existence of a conspiracy; (2) for the purpose of depriving [an individual], either directly or indirectly, of equal protection of the laws, or of equal privileges and immunities under the laws; (3) an act in furtherance of the conspiracy; and (4) injury in [the individual's] person or property or deprivation of any right of a citizen of the United States." Knight v. City of New York, 303 F. Supp. 2d 485, 501 (S.D.N.Y. 2004). An essential allegation of a § 1985(3) claim is that "the conspiracy [is] motivated by 'some racial or perhaps otherwise class-based, invidious discriminatory animus behind the conspirators' action.'" Id. (quoting United Brotherhood of Carpenters & Joiners of America v. Scott, 463 U.S. 825, 829 (1983)).
Jimenez has failed to allege a civil rights conspiracy. Most significantly, Jimenez has not alleged that any conspiracy has deprived him of equal protection of the laws. Jimenez complains that JPMC's upper management is not diverse and that Junius excludes minority investors. Compl., ¶ 2. But Jimenez does not allege that he is a member of a protected class or that he has sought to join JPMC's management team or invest in Junius. The absence of such allegations is controlling. See Zemsky v. City of New York, 821 F.2d 148, 151 (2d Cir. 1987) ("A plaintiff states a viable cause of action under Section 1985 or 1986 only by alleging deprivation of his rights on account of his membership in a particular class of individuals.")
More generally, Jimenez has failed to plead that a conspiracy existed, or that a co-conspirator acted in furtherance of that conspiracy. Even granting Jimenez's conspiracy claim a liberal construction, it fails to state a claim and must be dismissed. Any potential allegations supporting the existence of a conspiracy are vague and conclusory. Id. ("a pro se complaint 'containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights cannot withstand a motion to dismiss'") (quoting Sommer v. Dixon, 709 F.2d 173, 175 (2d Cir. 1983)).
D. The Fair Housing Act
Jimenez alleges that Defendants "are also breaking fair housing laws through their lack of inclusive advertising and marketing on their online websites." Compl., ¶ 2. He alleges that this is a violation of Section 804(c) of the Fair Housing Act. Compl., ¶ 3.
The Fair Housing Act prohibits discrimination in the sale or rental of housing. See 42 U.S.C. § 3604. Section 804(c) of the Fair Housing Act makes it unlawful:
to make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.42 U.S.C. § 3604(c). "Thus, to establish a prima facie claim under section 3604(c), plaintiffs must prove that: (1) defendants made a statement; (2) the statement was made with respect to the [sale or] rental of a dwelling; and (3) the statement indicated a preference, limitation, or discrimination on the basis of race." Wentworth v. Hedson, 493 F. Supp. 3d 559, 565 (E.D.N.Y. 20007). The Court of Appeals has interpreted section 804(c) claims broadly, finding that its reach extends beyond owners or agents and is not limited to statements that directly effect a housing transaction. U.S. v. Space Hunters, Inc., 429 F.3d 416, 434 (2d Cir. 2005). Indeed, the Court of Appeals has suggested that plaintiffs who suffer a "psychic injury" caused by discriminatory statements can recover even if they are not in the market for housing. Id. at 425.
Jimenez's Fair Housing Act claim fails because he does not allege any facts to establish that the Defendants' statements were made with respect to the sale or rental of a dwelling or that such statements indicated a preference, limitation or discrimination on the basis of race. Jimenez complains that Defendants' websites lack "inclusive advertising and marketing." In his opposition, he argues that these websites do not depict "Asians, Hispanic, or Middle-Eastern workers." Jimenez's allegation, even buttressed by arguments in his opposition brief, is insufficient to state a Fair Housing Act claim. Jimenez does not offer any facts from which the Court can infer that this non-inclusive online ad campaign is racial discriminatory or that it concerns the housing market.
I recommend that the Court dismiss Jimenez's Fair Housing Act claim. Because it is not implausible that JPMC's online advertising and marketing in connection with the housing market could indicate a preference or discrimination on the basis of race, I recommend that the Court grant Jimenez leave to file an amended complaint on this claim. Any amended pleading must identify the specific statement or statements that Jimenez alleges violate section 804(c). Jimenez will not be permitted to proceed on conclusory allegations that fail to identify statements "with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination." 42 U.S.C. § 3604(c).
See U.S. Attorney's Office for the Southern District of New York, Press Release (Jan. 30, 2017), Manhattan U.S. Attorney Settles Lending Discrimination Suit Against JP Morgan Chase for $53 Million. https://www.justice.gov/usao-sdny/pr/manhattan-us-attorney-settles-lending-discrimination-suit-against jpmorgan-chase-53 (last visited Jan. 27, 2019).
E. Federal Trade Commission Act of 1914
Jimenez sues for unfair business practices under the Federal Trade Commission Act. 15 U.S.C. § 45. Private parties have no right of action to enforce provisions of the Federal Trade Commission Act. Remedial power for FTC violations is vested solely in the Federal Trade Commission. See Hourani v. Wells Fargo Bank, N.A., 158 F. Supp. 3d 142, 148 (E.D.N.Y. 2016) (finding no statutory basis for a private right of action under the FTCA). Jimenez's FTC claim should be dismissed with prejudice.
F. Executive Orders
Jimenez sues under several federal Executive Orders. Executive Order 8802 was signed by President Franklin D. Roosevelt to prohibit ethnic or racial discrimination in the nation's defense industry. Executive Order 10925 was signed by President John. F. Kennedy to require government contractors to "take affirmative action to ensure that applicants are employed and that employees are treated during employment without regard to race, creed, color or national origin." Finally, Executive Order 11246, signed by President Lyndon B. Johnson, established requirements for non-discriminatory practices in hiring and employment on the part of U.S. government contractors. No private right of action exists to enforce obligations imposed by executive orders. Calef ex rel. Calef v. Barnhart, 309 F. Supp. 2d 425 (E.D.N.Y. 2004) (citing Zhang v. Slattery, 55 F.3d 732, 747 (2d Cir. 1995)). Accordingly, Jimenez's claims under these Executive Orders should be dismissed with prejudice.
G. New York's Son of Sam Law
Finally, Jimenez sues under New York's Son of Sam law. N.Y. Exec. Law § 632-a. This state law was enacted to prevent criminals from profiting from their crimes and otherwise establishes certain protections for victims of crimes. In his opposition, Jimenez states that "Defendants are violating Son of Sam law by profiting off of the illegal advertising" alleged in his Fair Housing Act claim. The Son of Sam law applies only to "funds of a convicted person." See N.Y. Exec. Law § 632-a(1)(c) (definition of "funds of a convicted person"). Because Jimenez does not allege that any of the Defendants are qualify as a convicted person under the statute, his allegations regarding this statute are not well-pled. Accordingly, the Court should dismiss with prejudice Jimenez's claim under the New York Son of Sam law. II. The Doctrine of Res Judicata
Because I recommend that the Court dismiss all of Jimenez's claims for failure to state a claim, it is unnecessary to consider in full the Defendants' alternative ground for dismissal: that this case should be dismissed on res judicata grounds. But because I recommend that the Court grant Jimenez leave to replead a claim under Section 804(c) of the Fair Housing Act, I consider whether that claim alone would otherwise be barred by Jimenez's prior action. I conclude that it would not.
Res judicata bars re-litigation if "(1) the previous action involved an adjudication on the merits; (2) the previous action involved the plaintiffs or those in privity with them; [and] (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action." Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 285 (2d Cir. 2000). As to the third element, we consider whether the second lawsuit concerns "the same claim—or nucleus of operative facts—as the first suit," applying three considerations: "(1) whether the underlying facts are related in time, space, origin, or motivation; (2) whether the underlying facts form a convenient trial unit; and (3) whether their treatment as a unit conforms to the parties' expectations." Channer v. Dep't of Homeland Sec., 527 F.3d 275, 280 (2d Cir. 2008) (internal quotation marks omitted). Res judicata "is based on the requirement that the plaintiff must bring all claims at once against the same defendant relating to the same transaction or event." N. Assur. Co. of Am. v. Square D Co., 201 F.3d 84, 88 (2d Cir. 2000) (citation omitted).
Jimenez's first action raised allegations that Jimenez was denied a business opportunity with Junius because of discriminatory animus. Although many of Jimenez's claims in this second action concern claims of discrimination in hiring, and therefore might arise out of the same nucleus of operative facts as his prior action, his (potential) Fair Housing Act claim is sufficiently separate that dismissal on res judicata grounds would be error. That claim concerns alleged statements made by Defendants online and allegedly concerning the housing market. Accordingly, I do not recommend that this claim be dismissed separately on res judicata grounds. Rather, I recommend that Jimenez be permitted to file a limited amended complaint to give him an opportunity to state with specificity the allegedly discriminatory statement(s) he sues about.
III. Leave to Amend
"Although district judges should, as a general matter, liberally permit pro se litigants to amend their pleadings, leave to amend need not be granted when amendment would be futile." Terry v. Inc. Village of Patchogue, 826 F.3d 631, 633 (2d Cir. 2016). As set forth above, leave to amend all but his Fair Housing Act claim would be futile. Accordingly, I recommend that leave to amend any other claim be denied.
CONCLUSION
I recommend that the Court dismiss Jimenez's complaint. Such dismissal should be with prejudice and without leave to amend for all claims except a claim under Section 804(c) of the Fair Housing Act. Jimenez should be granted limited leave to file an amended complaint to state with specificity any statement(s) that he believes falls within the statute's prohibition.
/s/_________
SARAH NETBURN
United States Magistrate Judge DATED: January 28, 2019
New York, New York
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed. R. Civ. P. 5(b)(2)(C), (D), or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Gregory H. Woods at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Woods. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). cc: Justin Marcel Jimenez (by Chambers)
99 Metropolitan Avenue
Bronx, NY 10462