Opinion
99 CIV. 12156 (DLC).
March 7, 2001
Mwamba Sentwali El Bey, Pro Se, For Plaintiff
Leslie Goff Sanders, Bass, Berry Sims, PLC, Nashville, TN., Michael L. Shore, Baker Botts LLP, New York, NY., For Defendants, Dialysis Clinic Inc. and Ann Row
David Griffiths, Rivera Griffiths, LLP, Bronx, NY., For Defendant, Nuala Fairclough
OPINION AND ORDER
In his amended complaint ("Amended Complaint"), pro se plaintiff Mwamba Sentwali El Bey ("El Bey") asserts that defendants discriminated against him in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2003 et seq. ("Title VII"), when Dialysis Clinic Inc. refused to hire him on the ground than he would not submit a W-4 form. Defendants have moved to dismiss. For the following reasons, defendants' motion is granted.
BACKGROUND
The following facts are asserted in plaintiff's original and amended complaints. Plaintiff El Bey identifies himself as a "Free Moorish-American" and a United States citizen. Dialysis Clinic Inc. ("DCI") is a private, non-profit company. Newla Fairclough ("Fairclough"), Ann Row ("Row"), and John Seldon ("Seldon") are employees of DCI.
Plaintiff's original complaint ("Complaint"), filed December 20, 1999, asserted that El Bey had been hired by DCI as a machine technician on July 29, 1998, and instructed to go to DCI'S Personnel Department to fill out various employment documents. At the Personnel Department, El Bey refused to fill out a W-4 form.
Plaintiff's original complaint was received by the Pro Se Office on October 6, 1999.
Plaintiff's complaint asserts that he applied for the DCI job on October 29, 1998, though other facts asserted in the complaint suggest that he applied for the job on July 29, not October 29.
On July 31, 1998, El Bey was informed that he would not be hired. The position for which he applied remained available and plaintiff was qualified for the job. On October 1, 1998, Fairclough told El Bey "in a belligerent tone" that he would not be getting the job. Fairclough made "reference to `your kind' and `you people.'"
El Bey asserted that DCI discriminated against him based upon his national origin by denying him employment for failure to file a W-4 form. El Bey asserts that, as a Moorish-American, he "did not have tax liability in accordance to Internal Revenue laws and the Laws of the United States."
On December 20, 1999, the day the Complaint was filed, Judge Griesa directed El Bey to file an amended complaint. Judge Griesa described the elements of a prima facie case of discrimination under Title VII and explained that plaintiff's Complaint "fail[ed] to allege that defendants discriminated against him on the basis of his race, color, gender, religion, or national origin" and had not "set forth facts upon which a court could conclude that defendants' failure to hire him was discriminatory" but, instead, alleged that "defendants denied him employment because he refused to file a W-4 form."
Judge Griesa also ordered that plaintiff's amended complaint assert claims against the Occupational Health Center, the party he named in an administrative claim filed with the New York State Division of Human Rights ("NYSDHR"), or allege either how there is "substantial identity" between the named defendants and the Occupational Health Center or how the named defendants have notice of the administrative action. Judge Griesa additionally ordered plaintiff to file an amended request to proceed in forma pauperis with a complete statement of his sources of income, or pay a filing fee.
Plaintiff filed his Amended Complaint on February 22, 2000, in which he asserted that DCI, Row, and Fairclough discriminated against him in violation of Title VII. In his Amended Complaint, El Bey asserts that he is "a member of a protected class, pursuant to the Zodiac Constitution" and that DCI's failure to hire him violated provisions of the Zodiac Constitution.
El Bey's Amended Complaint does not name Seldon, nor does it assert any causes of action under the United States Constitution. Plaintiff does assert, in his opposition to defendants' motion to dismiss, that defendants violated his rights under the Ninth Amendment to the United States Constitution. There is no legal basis to conclude that plaintiff's status as Moorish-American grants him the right under the Ninth Amendment — or any other provision in the United States Constitution — not to fill out a W-4 form or pay taxes. To the extent that plaintiff intended to re-assert in his Amended Complaint the constitutional claims that he asserted in his Complaint, those claims are dismissed.
DISCUSSION
A court may dismiss an action pursuant to Rule 12(b)(6), Fed.R.Civ.P., only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which will entitle him to relief.'"Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Jackson Nat. Life Ins. v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The court can dismiss the claim only if, assuming all facts alleged to be true, the plaintiff still fails to plead the basic elements of a cause of action.
Where, as here, a party is proceeding pro se this Court has an obligation to "read [the pro se party's] supporting papers liberally, and . . . interpret them to raise the strongest arguments that they suggest."Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1998). Nevertheless, a pro se plaintiff's "conclusory allegation . . . without evidentiary support or allegations of particularized incidents, does not state a valid claim." Butler v. Castro, 896 F.2d 698, 700 (2d Cir. 1990).
A. Individual Liability
There is no individual liability under Title VII. See Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000). Accordingly, El Bey's Title VII claims against the individual defendants are dismissed.
B. Claims brought under the Zodiac Constitution
To the extent that plaintiff's claims rely upon protections conferred by the Zodiac Constitution, this Court does not have jurisdiction under Article III of the United States Constitution to hear those claims because they do not arise under the Constitution or the laws or treaties of the United States. See Asim El v. Riverside Maintentance Corp., No. 95 Civ. 1204 (AGS), 1998 WL 205304, at *2 (S.D.N.Y. Apr. 27, 1998); Bey v. Philadelphia Passport Agency-M, Civ. A. No. 86-4906, 1986 WL 559, at *2 (E.D. Pa. Dec. 30, 1986).
C. Title VII Claim
Title VII provides that "[i]t shall be an unlawful employment practice for an employer . . . to fail or refuse to hire . . . any individual . . . because of such individual's . . . national origin." 42 U.S.C. § 2000e-2(a)(1). In order to survive defendants' motion to dismiss, plaintiff must specifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of racially discriminatory intent." Yusuf v. Vassar College, 35 F.3d 709, 713 (2d Cir. 1994) (Section 1981 discrimination case); Martin v. N.Y. State Dept't of Mental Hygiene, 588 F.2d 371, 372 (2d Cir. 1978) (per curiam) (Title VII case); Farrell v. Child Welfare Administration, 77 F. Supp.2d 329, 332 (E.D.N.Y. 1999).
Defendants assert that plaintiff has not alleged circumstances that give rise to an inference of discrimination on the basis of national origin. Employees have an obligation to file W-4 forms with their employers, and plaintiff's claim that DCI would not allow plaintiff to begin working without filling out a W-4 form does not, even when liberally construed, raise an inference of discrimination. Plaintiff's conversation with Fairclough is also insufficient to establish an inference of discrimination. Since Fairclough's comments are inextricably intertwined with the plaintiff's refusal to complete the required form, and because there is no indication that they were motivated by any impermissible consideration, they cannot separately support a claim.
A pro se plaintiff should be allowed to amend his pleadings "[u]nless it can be said that under the allegations of this complaint it appears that plaintiff is entitled to no relief under any view of the facts that could be produced in support of his cause of action." Tarshis v. Riese Organization, 211 F.3d 30, 39 (2d Cir. 2000). Judge Griesa, on December 20, 1999, gave plaintiff an opportunity to amend his complaint to set forth a prima facie case and explained the elements of a Title VII claim that plaintiff would need to plead in his Amended Complaint in order to avoid dismissal. Having amended his complaint, plaintiff has still failed to allege facts sufficient to establish a prima facie case of discrimination under Title VII. Plaintiff has not moved to amend his complaint a second time. Given the fact that plaintiff failed to plead the elements of a prima facie claim of discrimination under Title VII in his Amended Complaint, and failed to present any arguments in opposition to defendants' motions to dismiss that suggest that he can meet these requirements, granting plaintiff another opportunity to amend would be futile. See Koehler v. Bank of Bermuda (New York) Ltd., 209 F.3d 130, 138 (2d Cir. 2000).
CONCLUSION
Defendants' motion to dismiss is granted. The Clerk of Court shall close this case.
Because plaintiff's complaint is dismissed on the merits, it is unnecessary to address defendants' further argument that plaintiff's complaint should be dismissed because he did not comply with Judge Griesa's December 20, 1999 Order.
SO ORDERED