Opinion
23-CV-4069 (LTS)
07-27-2023
DANIEL LEE, Plaintiff, v. BRONX CARE HOSPITAL, Defendant.
ORDER TO AMEND
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff Daniel Lee, who is proceeding pro se, alleges that his employer, BronxCare Health System (“BronxCare”), discriminated against him on the basis of his race (Black), sex (male), and age (born in 1962), in violation of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967 (“ADEA”), 42 U.S.C. § 1981, and the New York State and City Human Rights Laws. He also brings claims under the Family and Medical Leave Act (“FMLA”) of 1993.
Plaintiff names as the defendant, “Bronx Care Hospital,” but attachments to the complaint indicate that the employer's name is BronxCare Health System.
By order dated May 17, 2023, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
BACKGROUND
Plaintiff brings this action against his employer, using a court-issued employment discrimination complaint form. In response to the question asking him to specify his causes of action, he checks the boxes on the form to assert claims under Title VII, alleging discrimination based on race and sex; the ADEA, noting he was born in 1962; the FMLA; and the New York State and City anti-discrimination statutes. Although he does not check the Section 1981 box, he does write, “Black American,” suggesting that he seeks relief under this statute. In response to the question asking the nature of the adverse action taken by BronxCare, Plaintiff checks the boxes indicating that BronxCare terminated his employment, did not promote him, did not accommodate his disability, retaliated against him, and harassed him or created a hostile work environment.
In the fact section of the complaint, Plaintiff states: “wrongful termination, discrimination against my age, retaliation against me after filing discrimination. 15 years never got written up for anything. 1199 didn't do their job. I'm the only one got terminated out of 3 people. It wasn't even my patient.” (ECF 1, at 5.) In the relief section of the complaint, he states, “I'm innocent. I didn't do anything in this matter. I believe I'm entitled to money and damages. They destroyed my life when I'm getting ready to retire[ ].” (Id. at 6.)
The Court quotes from the original complaint. All spelling, grammar, and capitalization are as in the original, unless otherwise noted.
Plaintiff also attaches to the complaint several documents which provide more facts regarding Plaintiff's employment and firing. Plaintiff worked as a patient care technician at BronxCare. On August 22, 2021, an incident occurred at BronxCare in which a minor child receiving psychiatric care alleged that Plaintiff physically abused him. (Id. at 17.) An investigation of the incident - the findings of which Plaintiff disputes - resulted in his firing. (See id. at 24.) As a result of the investigation, conducted by the New York State Justice Center for the protection of People with Special Needs (“Justice Center”), the Justice Center found that the allegations of excessive force and physical abuse were unsubstantiated, but that neglect was substantiated. (Id. at 20) (“The investigation revealed the subject failed to provide supervision to and/or failed to properly de-escalate the service recipient.” Id. at 19.).
One of the attachments to the complaint is an undated statement, written by Plaintiff and possibly related to a proceeding that occurred before he filed this action (“the statement”). In the statement, Plaintiff included the following allegations and requests. First, with respect to the incident, Plaintiff alleged that the minor child who accused him of abuse had become aggressive and that, in response, Plaintiff had attempted to restrain the child. After another employee intervened and restrained the child, the employee informed Plaintiff that the child had accused Plaintiff of choking him. Plaintiff denied that he choked the child.
Plaintiff requested in the statement that the EEOC investigate several matters related to Plaintiff's employment, including “discriminatory hiring practices (March 2021).” (Id. at 15.) He also alleged that, “[w]hen my direct manager onboarded, he terminated colleagues and hired new people. I was the only seasoned employee left.” (Id. at 15.) Finally, Plaintiff claimed “Age Discrimination,” noting, “I am eligible to retire in two years.” (Id. at 16.)
In addition to these alleged discriminatory practices, in the statement, Plaintiff also referred to conduct on the part of his union, “Union 1199.” He claimed that BronxCare and “Union 1[1]99 neglected to provide me with exit interview.” (Id. at 16.) Instead, he claims, “[m]y union delegate informed me to come in for a meeting, where I was terminated and asked to leave the premises.” (Id.) After his firing, he asked for a letter of termination from the human resources (“HR”) department, but “HR informed me there was no record of termination on file.” (Id.) Plaintiff indicates, as of the writing of the statement, that he had not received “an exit interview, Notice of Creditable Coverage, an Extension of Benefits, retirement options, investment account or any information on what I'm entitled upon turning 65.” (Id.) Plaintiff attaches to the complaint a partially completed form indicating that he and his union delegate, Wilma Mitchell, attended a conference on November 12, 2021, and that Plaintiff refused to sign the form. (Id. at 25.)
Another attachment to the complaint indicates that, before the August 22, 2021, incident, Plaintiff and his colleagues complained about alleged “discriminatory practices related to hiring of specific race/gender from a Nursing Agency.” (Id. at 21.)
Finally, Plaintiff attaches a letter dated November 15, 2021, from the President of BronxCare, addressed to Plaintiff where the President thanked Plaintiff for his “15 years of dedicated service.” (Id. at 14.)
DISCUSSION
A. Rule 8 of the Federal Rules of Civil Procedure
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to make a short and plain statement showing that the pleader is entitled to relief. A complaint states a claim for relief if the claim is plausible. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To review a complaint for plausibility, the Court accepts all well-pleaded factual allegations as true and draws all reasonable inferences in the pleader's favor. Iqbal, 556 U.S. at 678-79 (citing Twombly, 550 U.S. at 555). The Court need not accept, however, “[t]hreadbare recitals of the elements of a cause of action,” which are essentially legal conclusions. Id. at 678 (citing Twombly, 550 U.S. at 555). After separating legal conclusions from well-pleaded factual allegations, the court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
The complaint does not comply with Rule 8 because it does not state facts suggesting that Plaintiff is entitled to relief from the Defendant. Plaintiff asserts that BronxCare discriminated against him because of his race, sex, and age. He alludes to age discrimination, by noting the close proximity of his firing and upcoming retirement. He also references a complaint about hiring practices that he and his colleagues lodged, but he does not provide concrete examples of discrimination, or how those alleged practices affected him personally. For example, though he alleges that a new supervisor fired his colleagues, leaving him as the only seasoned employee, Plaintiff does not state that he was the target of any discriminatory practice. Plaintiff also does not state facts suggesting a violation of the FMLA; he claims that his employer did not accommodate a disability, but he provides no facts regarding his disability or the alleged failure to accommodate it. Because these allegations do not state claims upon which relief can be granted under Title VII, the ADEA, Section 1981, or the FMLA, the Court grants Plaintiff leave to file an amended complaint as set forth below.
1. Title VII
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). Title VII also prohibits an employer from retaliating against an employee who has opposed any practice made unlawful by those statutes, or who has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under the statutes. 42 U.S.C. § 2000e-3(a).
These antidiscrimination provisions prohibit employers from mistreating an individual because of the individual's protected characteristics, Patane v. Clark, 508 F.3d 106, 112 (2d Cir. 2007), or retaliating against an employee who has opposed any practice made unlawful by that statute, see Crawford v. Metro. Gov't, 555 U.S. 271, 276 (2009) (holding that conduct is protected when it “confront[s],” “resist[s],” or “withstand[s]” unlawful actions). Mistreatment at work that occurs for a reason other than an employee's protected characteristic or opposition to unlawful conduct is not actionable under Title VII. See Chukwuka v. City of New York, 513 Fed.Appx. 34, 36 (2d Cir. 2013) (quoting Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001)).
At the pleading stage in a Title VII employment discrimination action, “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. Still, the plaintiff need only provide “minimal support for the proposition that the [defendant] was motivated by discriminatory intent.” Id. at 85 (quotation marks omitted). “In making the plausibility determination, the court must be mindful of the ‘elusive' nature of intentional discrimination.” Id. at 86 (citation omitted).
Plaintiff's allegations do not give rise to a plausible inference of discrimination based on his race or sex because the complaint does not include facts suggesting that Plaintiff's race or sex were factors in BronxCare's decision to terminate him. Rather, the attachments suggest that (1) Plaintiff and his employer disagreed about the final findings regarding the August 22, 2021, incident, and (2) BronxCare fired him because of the incident. The complaint does not include facts suggesting that BronxCare's proffered reason for his firing Plaintiff was a pretext, and in fact, BronxCare fired him because of his race or sex. Thus, the complaint does not give rise to a plausible inference that Plaintiff's race or sex were factors in the decision to fire him.
Moreover, Plaintiff's assertion that BronxCare retaliated against him because he previously filed a complaint regarding BronxCare's hiring practices does not give rise to a plausible inference of retaliation. For example, the complaint does not include facts suggesting that Plaintiff's firing was the result of his prior complaints.
The Court therefore grants Plaintiff leave to state facts in support of his Title VII claims.
2. Age Employment Discrimination Act
The ADEA makes it unlawful for an employer to “discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. § 623(a). It also makes it unlawful to retaliate against employees who oppose discriminatory practices barred by the ADEA. Id. § 623(d). The statute protects workers who are at least forty years old from discrimination because of their age. See 29 U.S.C. § 631(a).
To state a claim under the ADEA, a plaintiff must allege that an employer took adverse action because of the plaintiff's age; that is, it was the reason the employer took an adverse action. See Gross v. FBL Fin. Servs., 557 U.S. 167, 174, 176 (2009). “Thus, to establish age discrimination under the ADEA, ‘a plaintiff must prove that age was the but-for cause of the employer's adverse decision.'” Lively v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 302-03 (2d Cir. 2021) (quoting Gross, 557 U.S. at 176)).
Plaintiff does not allege facts suggesting that Plaintiff's age was the reason BronxCare fired him. Even construing the allegation that his nearing retirement factored into the decision to fire him, the attachments to the complaint indicate that his employer also fired him because of the August 21, 2021, incident. Plaintiff does not counter this conclusion - that BronxCare fired him because of the incident - and therefore, the complaint does not give rise to a plausible inference that Plaintiff's age was the but for cause of his firing. The Court therefore grants Plaintiff leave to allege facts in support of his ADEA claims.
Plaintiff also invokes Section 1981 as a basis for his claims. Section 1981 “protects the equal right of ‘[a]ll persons within the jurisdiction of the United States' to ‘make and enforce contracts' without respect to race.” Domino's Pizza, Inc. v. McDonald, 546 U.S. 470, 474 (2006) (quoting 42 U.S.C. § 1981(a)). The statute “sets forth a remedy for employment discrimination that is independent of Title VII.” Ofori-Tenkorang v. Am. Int'l Grp., Inc., 460 F.3d 296, 300 (2d Cir. 2006). A plaintiff bringing a Section 1981 claim for employment discrimination must plausibly allege sufficient facts to demonstrate that: (1) he is a member of a protected class, (2) he was qualified for his position, (3) he suffered an adverse employment action, and (4) the adverse action took place under circumstances giving rise to the inference of discrimination. Ruiz v. Cnty of Rockland, 609 F.3d 486, 491 (2d Cir. 2010). “[A] plaintiff must . . . plead . . . that, but for race, [the plaintiff] would not have suffered the loss of a legally protected right.” Comcast Corp. v. Nat'l Ass'n of African Am.-Owned Media, 140 S.Ct. 1009, 1019 (2020).
Plaintiff alleges facts indicating that he (1) is a member of a protected class, (2) was qualified for his position, and (3) suffered an adverse employment action. Plaintiff does not state any facts, however, plausibly suggesting that his race was a “but for” cause for Defendant's actions. Because Plaintiff's assertions of race-based discrimination are not supported by specific facts, they cannot support an inference that race was the “but for” cause for the alleged actions taken against him and the termination of his employment. The Court therefore grants Plaintiff leave to state facts in support of his Section 1981 claims.
4. Family Medical Leave Act
The FMLA provides that certain eligible employees are “entitled to a total of 12 work weeks of leave during any 12-month period” for any one of several reasons enumerated in the Act. See 29 U.S.C. § 2612(a)(1). The FMLA covers, among other things, leave that is necessary “[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee.” Id. § 2612(a)(1)(C). Generally, plaintiffs may assert two varieties of FMLA claims, interference claims and retaliation claims:
In a general sense, an employee brings an ‘interference' claim when her employer has prevented or otherwise impeded the employee's ability to exercise rights under the FMLA. ‘Retaliation' claims, on the other hand, involve an employee actually exercising her rights or opposing perceived unlawful conduct under the FMLA and then being subjected to some adverse employment action by the employer. The two types of claims serve as ex ante and ex post protections for employees who seek to avail themselves of rights granted by the FMLA.Woods v. START Treatment & Recovery Ctrs., Inc., 864 F.3d 158, 166, 168 (2d Cir. 2017) (cleaned up). Here, Plaintiff does not state any facts suggesting that BronxCare violated the FMLA. Accordingly, the Court grants him leave to state facts in support of any FMLA claim he seeks to assert.
B. Labor Management Relations Act & National Labor Relations Act
Plaintiff includes allegations in his attachments suggesting that his union failed to represent him when he was fired. To the extent Plaintiff asserts that BronxCare breached a collective bargaining agreement with Plaintiff's union, the Court construes Plaintiff's complaint as asserting claims under the Labor Management Relations Act (“LMRA”) and the National Labor Relations Act (“NLRA”).
An employee may bring claims under the federal labor statutes, against his union and/or his employer, if: (1) the employer breached a collective bargaining agreement, and/or (2) his union breached its duty of fair representation in redressing his grievances against the employer. White v. White Rose Food, 128 F.3d 110, 113-14 (2d Cir. 1997). An employee may sue the union or the employer, or both, but must allege violations on the part of both. See DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 165 (1983)).
The employer's duty to honor the collective bargaining agreement is governed by Section 301 of the LMRA, see 29 U.S.C. § 185; White, 128 F.3d at 113 (citing DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 164 (1983)), and the union's duty of fair representation to its members is implied under the scheme set forth in Section 9(a) of the NLRA, see 29 U.S.C. § 159(a); White, 128 F.3d at 113-14 (citing DelCostello, 462 U.S. at 164).
These statutes do not require an employee to exhaust administrative remedies with a governmental entity, see Boyd v. Teamsters Local Union 553, 589 F.Supp. 794, 796-97 (S.D.N.Y. 1984), but “the employee must at least attempt to exhaust exclusive grievance and arbitration procedures established by the [collective] bargaining agreement” before bringing such a claim, Vaca v. Sipes, 386 U.S. 171, 184 (1967), unless he “can prove that the union as bargaining agent breached its duty of fair representation in its handling of the employee's grievance,” id. at 186.
There is a six-month limitations period in which to bring such a claim. See DelCostello, 462 U.S. at 172. That period begins to run from “the time when plaintiff[] knew or reasonably should have known that such a breach had occurred.” Cohen v. Flushing Hosp. & Med. Ctr., 68 F.3d 64, 67 (2d Cir. 1995); see White, 128 F.3d at 114.
Here, Plaintiff alleges that his union “didn't do their job,” and that a union representative was present when Plaintiff was fired. (ECF 1, at 5.) These facts suggest that Plaintiff seeks to bring a claim under the LMRA and the NLRA against Plaintiff's employer and/or his union. Accordingly, the Court grants Plaintiff leave to state additional facts in support of any claims he seeks to bring under these two labor statutes.
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state valid claims under Title VII, the ADEA, Section 1981, the FMLA, the LMRA, and the NLRA, the Court grants Plaintiff 60 days' leave to amend his complaint to detail his claims.
Plaintiff is granted leave to amend his complaint to provide more facts about his claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated his federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
Plaintiff may consider contacting the New York Legal Assistance Group's (“NYLAG”) Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. The clinic is run by a private organization; it is not part of, or run by, the court. It cannot accept filings on behalf of the court, which must still be made by any pro se party through the Pro Se Intake Unit. A copy of the flyer with details of the clinic is attached to this order.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within 60 days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 23-CV-4069 (LTS). An Amended Complaint form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and he cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.
United States District Court Southern District of New York
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IMPORTANT NOTICE
Under Rule 5 of the Federal Rules of Civil Procedure, Local Civil Rule 5.2, and the Court's Electronic Case Filing Rules & Instructions, documents may be served by electronic means. If you register for electronic service:
1. You will no longer receive documents in the mail;
2. If you do not view and download your documents during your “free look” and within 15 days of when the court sends the e-mail notice, you will be charged for looking at the documents;
3. This service does not allow you to electronically file your documents;
4. It will be your duty to regularly review the docket sheet of the case.
The docket sheet is the official record of all filings in a case. You can view the docket sheet, including images of electronically filed documents, using PACER or you can use one of the public access computers available in the Clerk's Office at the Court.
CONSENT TO ELECTRONIC SERVICE
I hereby consent to receive electronic service of notices and documents in my case(s) listed below. I affirm that:
1. I have regular access to my e-mail account and to the internet and will check regularly for Notices of Electronic Filing;
2. I have established a PACER account;
3. I understand that electronic service is service under Rule 5 of the Federal Rules of Civil Procedure and Rule 5.2 of the Local Civil Rules, and that I will no longer receive paper copies of case filings, including motions, decisions, orders, and other documents;
4. I will promptly notify the Court if there is any change in my personal data, such as name, address, or e-mail address, or if I wish to cancel this consent to electronic service;
5. I understand that I must regularly review the docket sheet of my case so that I do not miss a filing; and
6. I understand that this consent applies only to the cases listed below and that if I file additional cases in which I would like to receive electronic service of notices of documents, I must file consent forms for those cases.