Opinion
1:23-cv-04997 (GHW) (SDA)
05-02-2024
Patrick Obah, Plaintiff, v. Department of Administration for Children's Services, Robert Holmes, Alesha Bovell-John and Carol Jacob, Defendants.
HONORABLE GREGORY H. WOODS, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
STEWART D. AARON UNITED STATES MAGISTRATE JUDGE
Pro se plaintiff Patrick Obah (“Plaintiff” or “Obah”) brings this action alleging discrimination on the basis of race, color, religion, and national origin in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981 (“§ 1981”); the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq.; and the New Yok City Human Rights Law (“NYCHRL”),N.Y.C. Admin. Code § 8-101 et seq. (Compl., ECF No. 1, at PDF pp. 3-4.) Defendants Department of Administration for Children's Services (“ACS”) and Robert Holmes (“Holmes”), Alesha Bovell-John (“Bovell-John”) and Carol Jacob (“Jacob”) (collectively, the “Individual Defendants” and, together with ACS, the “Defendants”), move to dismiss the Complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, for failure to state a claim. (Defs.' Mot., ECF No. 17.) For the reasons set forth below, I respectfully recommend that Defendants' motion be GRANTED and that Plaintiff be granted leave to amend.
As set forth in Discussion Section IV below, the Court liberally construes the Complaint as asserting a NYCHRL claim.
The relevant facts are drawn from Plaintiff's Complaint, including the documents attached thereto. See DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010) (“In considering a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the complaint, documents attached to the complaint as exhibits, and documents incorporated by reference in the complaint.”). The Court also has considered the facts sets forth in Plaintiff's opposition, which the Court finds are consistent with the Complaint. See Schwartz v. Middletown City Sch. Dist., No. 23-CV-01248 (KMK), 2024 WL 1257095, at *1 n.4 (S.D.N.Y. Mar. 25, 2024) (“Courts in pro se cases routinely consider new facts raised in opposition papers to the extent that they are consistent with the complaint.”) (citing, inter alia, Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013) (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.”)). For purposes of the pending motion to dismiss, the Court accepts Plaintiff's factual allegations as true and draws all reasonable inferences in his favor. See City of Providence v. Bats Glob. Mkts., Inc., 878 F.3d 36, 48 (2d Cir. 2017).
Obah is an ordained Roman Catholic priest, originally from Nigeria. (Compl. at PDF pp. 3 4, 11.) Plaintiff received his undergraduate degree from “the Roman Catholic Major Seminary in Congo” and his master's degree in theology from Saint Elizabeth University. (Id. at PDF pp. 8, 24, 38, 86; Pl.'s Opp., ECF No. 22, at PDF p. 3.) Obah applied for a Youth Development Specialist (”YDS”) position at ACS and, on December 15, 2022, was given a conditional offer of employment. (Id. at PDF p. 37.) The conditional offer letter states that Obah's employment was “subject to verification of the minimum qualification requirements for the position, which include[d] evaluation of any foreign education credentials.” (Id.)
On March 3, 2023, Holmes, a Compliance Specialist in ACS's Office of Human Resources, emailed Obah asking “how [he was] coming along with getting [his] education evaluated and if [he was] still interested in moving forward with the YDS position that [he had] applied for.” (Compl. at PDF p. 46.) On March 7, 2023, Holmes emailed Obah again noting that he had not heard from him and stating that Holmes would have to “deem [him] an unresponsive candidate” if Obah did not respond by the next day. (Id. at PDF p. 47.) Obah responded shortly thereafter, indicating that he still was interested in the position and raising what he considered to be an “unfair” assessment of his academic credentials. (Id.) In a second email sent shortly after the first, Obah asserted that Holmes “didn't even study or look into [Obah's] academic credentials.” (Id.) On March 18, 2023, Obah filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Id. at PDF p. 6.)
Holmes responded to Obah's emails on March 20, 2023, reminding Obah that “[he was] informed that [he would have] to get [his] education evaluated by an agency approved evaluator[,]”and that Obah would have to pay for that service. (Compl. at PDF pp. 47-48.) Holmes further explained that “the resource that [Obah had] utilized to translate [his] education was not one accepted by the agency” and that Holmes also had not been able to verify Obah's work experience. (Id. at PDF p. 48) Obah replied to Holmes the same day, stating that Holmes “[did not] want to work with [him] or accept any of [his] credentials,” and asked Holmes to accept his master's degree, even if he did not accept his other credentials earned from outside the United States. (Id. at PDF pp. 48-49.)
On March 21, 2023, Obah emailed Jacob, the Director of Employment Compliance, regarding Holmes. (Compl. at PDF p. 22.) Obah reported that Holmes was “giving [him] a hard time after recruitment” and was not accepting his academic credentials, despite earning one in the United States. (Id.) Obah wrote that Holmes “[did not] want to study [his] degree/credentials and [Holmes did not] want to call places [Obah had] worked to verify if [he had] the experience.” (Id.) Obah also wrote that he felt that Holmes was “discriminating against [him] because [he] wasn't born here” and that other people “that were employed on the same day” had started working, but Holmes “[did not] want to allow [Obah] to work.” (Id.) Obah asked Jacob to look into his academic credentials and to verify Obah's experience. (Id.)
On March 31, 2023, Jacob responded to Obah regarding his inquiry. (Compl. at PDF pp. 23-24.) Jacob told Obah that his master's degree “[did] not automatically qualif[y] [him] for the [YDS] position.” (Id.) Jacobs noted that Obah had three credits in psychology from Saint Elizabeth, but that Obah's undergraduate studies would need to be evaluated by one of the approved foreign education evaluation institutions to determine if he had “any more credits in the areas of interest.” (Id.) Jacob also informed Obah that Holmes had been unable to verify his experience from the institution Obah listed on his resume and CPD-B.(Id.) Jacob explained that Holmes had accepted Obah's master's degree, but reiterated that it “alone [did] not qualify [him]” for the position. (Id.) Jacob included in her email a list of the education and experience requirements for the YDS position and informed Obah that “[her] investigations determine[d] that [Holmes] provided [Obah] with the necessary and required information for [the YDS position]” and “[had] not found any biases associated with [the agency's] onboarding Standard Operating Procedures.” (Id. at PDF pp. 24-25.) Jacob also wrote that ACS and Holmes had “onboarded numerous candidates who were not born in the [United States].” (Id.)
A “CPD-B” is a “Comprehensive Personnel Document” that new hires of the City of New York must complete as part of their employment on-boarding, and which is usually “more extensive than the initial application.” Weinstein v. City of New York, No. 16-CV-06034 (LTS) (DCF), 2019 WL 1410746 (S.D.N.Y. Mar. 28, 2019) (citing defendant's Rule 56.1 submission).
On or about March 30, 2023, the Assistant Commissioner for Human Resources Operations, Siheem Roseborough, Esq., sent Obah a letter stating that ACS had made three attempts to contact his previous employer at The Church of Notre Dame and had not received a response. (Compl. at PDF p. 35.) The letter informed Obah that if the agency did not receive his completed employment verification form by April 7, 2023, they would withdraw his name as a candidate for the YDS position and that he should contact Supervisor Bovell-John with any questions. (Id.)
On April 4, 2023, Obah emailed Bovell-John, a Senior Investigator in the Office of Human Resources, Office of the Commissioner, attaching an evaluation of his undergraduate degree from World Education Services. (Compl. at PDF p. 54; see also id. at 76.) The next day, Bovell-John responded that Obah should see the “Approved Foreign Education Evaluation Services to provide our agency with [his] undergraduate degree information.” (Id. at PDF p. 54) She also requested that Obah “[p]rovide the name and contact information for the person or people who [were] able to verify [his] youth and young adults experience.” (Id.) Obah emailed Bovell-John on April 6, 2023, providing contact information for Reverend Father Jude Egbeji, a Chaplain with whom Obah had worked, and the contact information for Reverend Jose Maria Collazo, the Program Director for a Clinical Pastoral Education program, in which Obah was participating at New York Presbyterian. (Id. at PDF pp. 51, 55; see also id. at PDF pp. 9-10.) Bovell-John responded, asking Obah why this information had not been included in his personnel document. (Id. at PDF p. 52.) Obah provided an explanation via email on April 18, 2023. (Id.) At some point thereafter, Obah's offer was terminated. (See Pl.'s Opp. at PDF p. 3-4.)
On April 21, 2023, Obah received a notice of dismissal/right to sue letter, issued on April 12, 2023, regarding his EEOC charge. (Compl. at PDF pp. 6, 16-18.) The dismissal stated that the EEOC was closing the charge because the facts alleged failed to state a claim. (Id. at PDF p. 16.) The dismissal provided that Plaintiff had to file a lawsuit within 90 days of the notice. (Id.)
The Court notes that the notice of dismissal states that the charge alleged discrimination on the basis of sex (see Compl. at PDF p. 18), which is not one of the grounds of discrimination raised in this action. This would suggest that Obah did not properly exhaust his remedies so as to file a Title VII claim. However, “the burden of pleading and proving Title VII exhaustion lies with defendants and operates as an affirmative defense.” Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 491 (2d Cir. 2018). Because Defendants did not raise this issue in their motion, the Court does not address it.
PROCEDURAL HISTORY
On June 13, 2023, Plaintiff timely filed his Complaint in this action. (See Compl.) On October 11, 2023, Defendants filed the motion to dismiss that is now before the Court. (See Defs.' Mot.) After the Court granted Plaintiffs request for an extension of time to file his opposition, Plaintiff filed a declaration of slightly over two pages in opposition to Defendants' motion on January 19, 2024. (Pl.'s Opp.) On February 16, 2024, Defendants filed their reply. (Defs.' Reply, ECF No. 23.)
On March 1, 2024, Plaintiff filed another declaration, which included additional argument in opposition to Defendants' motion. (Pl.'s 3/1/24 Decl., ECF No. 24.) On April 8, 2024, Plaintiff filed a letter to the Court attaching 92 pages of documents. (Pl.'s 4/8/24 Letter, ECF No. 25.) In view of Plaintiff's Pro se status, the Court has considered the arguments set forth in Plaintiff's March 1, 2024 declaration.
The Court does not consider the additional documents attached to Plaintiff's April 8, 2024 letter. Even if the Court were to consider those documents, they would not change the Court's recommendations set forth herein. The majority of the documents either are blank forms or copies of policies relevant to the hiring process for City employees. (See Pl.'s 4/8/24 Letter at PDF pp. 3-94.)
LEGAL STANDARDS ON MOTION TO DISMISS
A complaint need only contain “a short and plain statement . . . showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). A defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 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.” Id. (citing Twombly, 550 U.S. at 556).
In deciding a motion to dismiss, the Court “must accept as true all of the allegations contained in a complaint[,]” but “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citation omitted). “Determining whether a complaint states a plausible claim . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Id. at 679 (citation omitted).
Where, as here, a plaintiff is proceeding Pro se, the Court must be mindful that the plaintiff's pleadings should be held “to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)). Complaints filed by Pro se litigants “must be construed liberally and interpreted to raise the strongest arguments that they suggest.” Sykes v. Bank of Am., 723 F.3d 399, 403 (2d Cir. 2013) (cleaned up) (quoting Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). Nevertheless, a Pro se plaintiff “must still plead enough facts to state a claim to relief that is plausible on its face.” Owens v. City of New York, No. 14-CV-00966 (KBF), 2015 WL 715841, at *1 (S.D.N.Y. Feb. 19, 2015) (citing Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). Moreover, Pro se plaintiffs “cannot withstand a motion to dismiss unless their pleadings contain factual allegations sufficient to raise a ‘right to relief above the speculative level.'” Jackson v. N.Y. State Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y. 2010) (quoting Twombly, 550 U.S. at 555).
“In determining the adequacy of a claim under Rule 12(b)(6), a court is generally limited to ‘facts stated on the face of the complaint,' ‘documents appended to the complaint or incorporated in the complaint by reference,' and ‘matters of which judicial notice may be taken.'” Zoulas v. N.Y.C. Dep't of Educ., 400 F.Supp.3d 25, 48 (S.D.N.Y. 2019) (quoting Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016)). “While the Court must accept the facts as alleged in the complaint, when any allegations contradict the evidence contained in the documents relied upon by a plaintiff, the documents control, and the Court need not accept the allegations contained within the complaint as true.” Id. (cleaned up).
DISCUSSION
Plaintiff alleges that he was discriminated against on the basis of his race, national origin, color and religion because ACS terminated his conditional employment, while applicants interviewed on the same day, but who were born in the United States, had started working and rejected Obah's academic credentials because his degrees were from Catholic institutions. (Compl. at PDF pp. 6, 8; Pl.'s Opp. at PDF p. 4; see also Pl.'s 3/1/24 Decl. at 12-23.) Defendants argue that Plaintiff's claims should be dismissed for failure to state a claim, and that ACS is not a suable entity. (Defs.' Mem., ECF No. 18, at 3-9.)
While Defendants' Notice of Motion seeks dismissal under Rule 12(b) on the ground that Plaintiff failed to state a claim (see Defs.' Mot. at 1), their memorandum of law also argues that the Complaint fails to comply with Rules 8(a) and 10(b) of the Federal Rules of Civil Procedure. (Defs.' Mem. at 3-5.) Rule 8(a) states “a pleading that states a claim for relief must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief.” The statement should be plain “so as to enable [the adversary] to answer and prepare for trial.” Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Dismissal for failure to comply with Rule 8 “is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised.” Id. While Plaintiff's Complaint is 107 pages, the majority of those pages are exhibits, which help elucidate, rather than disguise, the facts underlying Plaintiff's claims. Because I find that the substance of the Complaint is intelligible, I recommend that Defendants' motion to dismiss for lack of compliance with Rule 8(a) be denied. See Murillo-Roman v. Pension Boards - United Church of Christ, No. 1:22-CV-08365 (JLR), 2024 WL 246018, at *5 (S.D.N.Y. Jan. 23, 2024) (quoting Harnage v. Lightner, 916 F.3d 138, 142 (2d Cir. 2019)) (denying motion to dismiss on Rule 8 grounds when complaint was “not the incomprehensible ‘labyrinthian prolixity of unrelated and vituperative charges' that Rule 8 was intended to curb”). Rule 10(b) mandates that “[a] party must state its claim . . . in numbered paragraphs.” “Where the absence of numbering or succinct paragraphs does not interfere with one's ability to understand the claims or otherwise prejudice the adverse party, the pleading should be accepted.” Edwards v. Annucci, No. 17-CV-5018 (VB), 2019 WL 1284295, at *5 (S.D.N.Y. Mar. 20, 2019) (quoting Phillips v. Girdich, 408 F.3d 124, 128 (2d Cir. 2005). Moreover, “even where a violation of Rule 10(b) is not harmless, dismissal is not typically the appropriate course of action.” Id. (citation and internal quotation marks omitted). The absence of numbered paragraphs does not interfere with the ability to understand Plaintiff's claims or otherwise prejudice Defendants. Accordingly, I recommend denying Defendants' motion to dismiss for failure to comply with Rule 10(b). See id. at *5 (denying motion to dismiss for failure to comply with Rules 8 and 10 when “complaint narrate[d] defendants' alleged actions with sufficient clarity for the reader to understand plaintiffs' factual allegations and legal claims”).
I. Whether ACS Is A Suable Entity
The Court first considers Defendants' argument that ACS is not a suable entity and must be dismissed. (Defs.' Mem. at 8-9; Defs.' Reply at 5.) New York City Charter § 396 provides that “all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the city of New York and not in that of any agency, except where otherwise provided by law.” N.Y.C. Charter Ch. 17 § 396. Thus, ACS, as an agency of the City of New York (the “City”), cannot be sued independently. See Kurtz v. Hansell, No. 20-CV-03401 (PAE), 2021 WL 1143619, at *8 (S.D.N.Y. Mar. 24, 2021) (dismissing claims against ACS since it is not suable entity). However, in view of Plaintiff's Pro se status, I recommend that the Court substitute the City as the proper defendant pursuant to Federal Rule of Civil Procedure 21. See Masihuddin v. Gavin, No. 10-CV-06006 (GBD) (SN), 2014 WL 1091157, at *1 (S.D.N.Y. Mar. 17, 2014) (substituting City of New York for ACS as defendant in Pro se case); see also Robinson v. Admin. Child. Servs., No. 23-CV-01847 (LTS), 2023 WL 2919518, at *1 (S.D.N.Y. Mar. 7, 2023) (noting that “[o]rdinarily, the Court would substitute, under Rule 21 of the Federal Rules of Civil Procedure, the City of New York for ACS” but declining to do so given that Court was transferring action and, thus, would leave “such a substitution to the transferee court”).
Any such substitution should be “without prejudice to any defenses that the City of New York may wish to assert.” See Murray v. N.Y.C. D.O.C., No. 21-CV-6718 (LJL), 2021 WL 3668203, at *1 (S.D.N.Y. Aug. 17, 2021) (substituting City of New York for New York City Department of Correction pursuant to Rule 21).
II. Discrimination Claims Under Title VII
Title VII makes it unlawful 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)(1). As an initial matter, there is no individual liability under Title VII. See Lore v. City of Syracuse, 670 F.3d 127, 169 (2d Cir. 2012). Accordingly, I recommend that Plaintiff's Title VII claims against the Individual Defendants be dismissed and only consider whether Plaintiff has stated a claim against the City, as substituted for ACS.
“[T]o properly assert a claim of discrimination against an employer under Title VII, a plaintiff must ‘allege two elements: (1) the employer discriminated against him (2) because of his race, color, religion, sex, or national origin.'” Buon v. Spindler, 65 F.4th 64, 78 (2d Cir. 2023) (quoting Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 85 (2d Cir. 2015) (alterations omitted)). Title VII claims are analyzed under the well-known burden-shifting framework articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See id. However, a plaintiff is not required to plead facts establishing a prima facie case since it is an evidentiary standard and not a pleading requirement. See id. at 79 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002)). “Instead, for a discrimination claim to survive a motion to dismiss, ‘absent direct evidence of discrimination, what must be plausibly supported by facts alleged in the complaint is that the plaintiff [(1)] is a member of a protected class, [(2)] was qualified, [(3)] suffered an adverse employment action, and [(4)] has at least minimal support for the proposition that the employer was motivated by discriminatory intent.'” Id. at 79 (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)). “An inference of discrimination can arise from circumstances including, but not limited to, the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group; or the more favorable treatment of employees not in the protected group; or the sequence of events leading to the [adverse action].” Littlejohn, 795 F.3d at 312.
Defendants argue that Plaintiff has not plausibly alleged that he was qualified for the YDS position. (Defs.' Mem. at 5-7.) The Court agrees. “To be ‘qualified' for a position, however, an employee must not only be capable of performing the work; [he] must also satisfy the employer's conditions of employment.” Moore v. City of New York, No. 16-CV-07358 (RJS), 2018 WL 1281809, at *4 (S.D.N.Y. Mar. 8, 2018) (internal quotation marks omitted), aff'd, 745 Fed.Appx. 407 (2d Cir. 2018). Plaintiff attaches to the Complaint an email setting forth various combinations of education and experience to qualify for the YDS position as well as the conditional offer letter stating that the minimum qualification requirements for the position included evaluation of any foreign education credentials. (Compl. at PDF pp. 24-25, 37.) Plaintiff alleges that he presented three different academic evaluations and translations from three different companies that ACS rejected. (Compl. at PDF p. 8.) In his opposition, Plaintiff further alleges that “[d]espite numerous attempts to provide documentation for [his] qualifications, including evaluations from reputable services such as World Educational Services and works language services, [his] efforts [were] met with continuous resistance.” (Pl.'s Opp. at PDF p. 3.) In addition, Plaintiff alleges that after someone at ACS gave him an agency to use for evaluation of his foreign credentials, they rejected it saying they did not use that agency. (Id. at PDF p. 4.)
The Court finds that these allegations are insufficient for Plaintiff to plausibly allege that he met the criteria set by ACS for the YDS position, including the requirement that his foreign education credentials be verified through an approved evaluation service. Although Plaintiff suggests that ACS should have accepted the evaluations of his foreign education that he provided, “[t]he Second Circuit has directed district courts to afford broad deference to the employer's choice of hiring criteria for a position[.]” Monger v. Conn. Dep't of Transp., No. 17-CV-00205 (JCH), 2019 WL 399908, at *9 (D. Conn. Jan. 31, 2019) An employer “is not compelled to submit the reasonableness of its employment criteria to the assessment of either judge or jury,” “[a]bsent a showing by the plaintiff that the employer's demands were made in bad faith[.]” Id. (quoting Thornley v. Penton Pub., Inc., 104 F.3d 26, 29 (2d Cir. 1997)) (internal quotations omitted). “Bad faith may be shown with evidence that an employer does not uniformly apply its hiring criteria, such as when employers ‘relax[ ]' job requirements only for employees who are not members of the plaintiff's protected class.” Id. (quoting Howley v. Town of Stratford, 217 F.3d 141, 152 (2d Cir. 2000)); see also Moore, 2018 WL 1281809, at *4 (“To be sure, the existence of [employer-mandated] conditions will not defeat an otherwise viable claim of discrimination if the conditions are applied in a discriminatory manner.”) (citing Howley, 217 F.3d at 151).
Plaintiff has not made such a showing here. Plaintiff alleges that other Americans, by which he appears to mean individuals born in the United States, who interviewed with him the same day had started working. (Compl. at PDF p. 8; see also Pl.'s Opp. at 3-4; Pl.'s 3/1/24 Decl. at PDF p. 12.) However, he does not allege any facts indicating that the requirements or the verification process were relaxed or applied differently for any other applicant. For example, he does not allege that any applicant born in the United States was allowed to work without verifying their foreign education credentials through one of the ACS-approved agencies or without meeting the stated education and experience requirements. See Jackson v. Univ. of New Haven, 228 F.Supp.2d 156, 162 (D. Conn. 2002) (dismissing Title VII disparate treatment claim at summary judgment when applicant for head coach job did not put forth any evidence that “defendants failed to apply the prior college coaching experience requirement uniformly to African Americans and others”).
Even assuming arguendo, that Plaintiff plausibly alleged he was qualified for the YDS position, his allegations do not provide even minimal support for the proposition that the decision to terminate his offer was motivated by discriminatory intent. Plaintiff does not allege any direct evidence of animus based on his race, color, national origin or religion. Even if, as Plaintiff suggests, ACS changed the accepted foreign education evaluation agencies (see Pl.'s Opp. at PDF p. 4), he has not plausibly alleged that it did so in an attempt to discriminate against him.
To the extent that Plaintiff relies upon his allegation that other Americans started working, he does not allege that he was similarly situated to those individuals in all material respects. “A plaintiff attempting to show that the employer treated [him] less favorably than a similarly situated employee outside [his] protected group must show [he] was similarly situated in all material respects to the individuals with whom [he] seeks to compare [himself].” James v. Borough of Manhattan Cmty. Coll., No. 20-CV-10565 (LJL), 2021 WL 5567848, at *5 (S.D.N.Y. Nov. 29, 2021) (quoting Mandell v. Cnty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003)) (cleaned up). As set forth above, Plaintiff does not allege that other applicants were hired without verifying their foreign education through an ACS-approved agency, or without meeting the stated education and experience requirements. Thus, he has not alleged a similar enough comparator “to support at least a minimal inference that the difference of treatment may be attributable to discrimination.” See McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001).
Moreover, Plaintiff's conclusory allegations that Defendants rejected his degrees because they were from Catholic institutions (see Compl. at PDF p. 8; Pl.'s 3/1/24 Decl. at 13) are insufficient to provide even minimal support for the inference that Defendants were motivated by discriminatory intent. See Small v. City of New York, No. 21-CV-01527 (GHW), 2022 WL 376030, at *5 (S.D.N.Y. Feb. 7, 2022) (conclusory allegation that defendants acted “‘based on [plaintiff's protected characteristic' is insufficient, standing alone, to plausibly allege [defendants' actions were motivated at least in part by discriminatory reason”). Indeed, the documents attached to Plaintiff's Complaint indicate that ACS accepted his master's degree in theology from Saint Elizabeth University, but that the master's degree alone was insufficient to meet the stated requirements. (See Compl. at PDF p. 24.)
In sum, Plaintiff alleges no facts to suggest that Defendants applied the YDS requirements in a discriminatory manner or that discrimination played any role in the decision to terminate his offer. Accordingly, I recommend that his Title VII claims be dismissed. See Ebalu v. N.Y.C. Police Dep't, No. 21-CV-06476 (LJL) (SN), 2022 WL 4485920, at *2 (S.D.N.Y. June 21, 2022), report and recommendation adopted, 2022 WL 4485377 (S.D.N.Y. Sept. 27, 2022) (dismissing Title VII claim when plaintiff “failed to allege any facts at all that remotely suggest discriminatory intent” in NYPD's decision to disqualify candidate).
III. Race Discrimination Claims Under § 1981
Section 1981 provides that “[a]ll persons within the jurisdiction of the United States shall have the same right in every State . . . to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens[.]” 42 U.S.C. § 1981(a).Defendants argue that Plaintiff's § 1981 claims should be dismissed because the statute does not provide a private right of action against state actors and Plaintiff has not plausibly alleged that the Individual defendants were personally involved in any discriminatory activity.(Defs' Mem. at 7-8.)
To state a claim for racial discrimination under § 1981, Plaintiff must allege that he was discriminated against on the basis of his ancestry or ethnicity and not solely his national origin. See Anderson v. Conboy, 156 F.3d 167, 170 (2d Cir. 1998) (Section 1981 prohibits discrimination on the basis of race, which “encompasses discrimination based on ancestry or ethnic characteristics,” but “does not prohibit discrimination on the basis of . . . national origin.”). Defendants do not raise, and the Court need not address, this distinction because, even assuming Plaintiff's allegations are sufficient to state a claim for discrimination based on race rather than national origin, Plaintiff fails to state a claim for the reasons set forth herein.
In their reply memorandum, Defendants further argue that Plaintiff's § 1981 claim should be dismissed as abandoned because he failed to address such claim in his opposition papers. (Defs.' Reply at 3-4.) Given Plaintiff's pro se status, the Court declines to recommend dismissal based on Plaintiff's failure to address this claim in his opposition. See Tsismentzoglou v. Milos Estiatorio Inc., No. 18-CV-09664 (RA), 2019 WL 2287902, at *2 n.3 (S.D.N.Y. May 29, 2019) (“A pro se plaintiff . . . should not be presumed to have abandoned his claims because he did not address a defendant's specific arguments.”).
Defendants are correct (Defs.' Mem. at 7-8) that § 1981 does not provide a separate private right of action against state actors. See Duplan v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018). Rather, “the express cause of action for damages created by § 1983 constitutes the exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units.” Id. at 619 (quoting Jett v. Dallas Independent Sch. Dist., 491 U.S. 701, 733 (1989)) (cleaned up) (emphasis omitted). Nonetheless, courts in this Circuit routinely construe claims brought under § 1981 as arising under § 1983 and the Second Circuit has made clear that “plaintiffs need not invoke § 1983 expressly in order to state a claim, so long as they plead facts that plausibly indicate liability.” Quinones v. City of Binghamton, 997 F.3d 461, 468 n.4 (2d Cir. 2021) (construing § 1981 claim as claim under § 1983).
Section 1983 is not “a source of substantive rights[,]” but “provides a method for vindicating federal rights elsewhere conferred, such as those conferred . . . by § 1981.” Patterson v. County of Oneida, 375 F.3d 206, 225 (2d Cir. 2004) (internal citations and quotations omitted).“To state a claim under § 1983, a plaintiff must allege two elements: (1) the violation of a right secured by the Constitution and laws of the United States, and (2) the alleged deprivation was committed by a person acting under color of state law.” Collymore v. City of New York, 767 Fed.Appx. 42, 45 (2d Cir. 2019) (citing Vega, 801 F.3d at 87-88). “Once the color of law requirement is met, a plaintiff's [§ 1983] claim parallels [his] Title VII claim, except that a § 1983 claim, unlike a Title VII claim, can be brought against an individual.” Id. (citing Vega, 801 F.3d at 88); see also Patterson, 375 F.3d at 229 (“a plaintiff must establish a given defendant's personal involvement in the claimed violation in order to hold that defendant liable in his individual capacity under § 1983.”). Accordingly, I recommend that Plaintiff's § 1983 claim be dismissed for the same reasons as his Title VII claims. See McCrae v. H.N.S. Mgmt. Co., No. 22-CV-00217 (JBA), 2022 WL 16635390, at *8 (D. Conn. Nov. 2, 2022) (citing Vega, 801 F.3d at 88 (dismissing §1981/§1983 claim for same reasons as Title VII claim and noting that to state a § 1983 claim, “a plaintiff must plausibly allege a claim under the same standards applicable to a Title VII claim”).
In construing § 1981 claims under § 1983, some courts refer to the pleading standards of § 1981 and others frame the claim as an Equal Protection Clause claim under the Fourteenth Amendment to the United States Constitution. Either way, the claim is one for intentional racial discrimination and the pleading standards are the same. See Brisbane v. Milano, 443 Fed.Appx. 593, 594 (2d Cir. 2011) (citing Brown v. City of Oneonta, 221 F.3d 329, 339 (2d Cir. 2000) (“Section 1981 also prohibits only intentional racial discrimination, and thus has the same pleading standards as the Equal Protection Clause”).
The Court notes that while “[m]ost of the core substantive standards that apply to claims of discriminatory conduct in violation of Title VII are also applicable to claims of discrimination in employment in violation of § 1981 or the Equal Protection Clause . . . there are some key differences: statute of limitations, standards for liability of a municipality or an individual, and the state of mind required to establish liability.” Wellington v. Spencer-Edwards, No. 16-CV-06238 (AT) (JLC), 2017 WL 11512684, at *3 n.5 (S.D.N.Y. Sept. 28, 2017) (citing Patterson, 375 F.3d at 225-27). Because I recommend dismissing Plaintiff's claims for failure to state a claim based upon the core substantive standards, the Court need not consider these differences on the instant motion.
IV. Discrimination Claims Under NYSHRL/NYCHRL
In his Complaint, Plaintiff checked the box indicating that he was asserting a claim under the NYSHRL. (See Compl. at PDF p. 4.) However, he did not check the box for asserting a claim under the NYCHRL. (See id.) Nevertheless, in his opposition, Plaintiff cites to the NYCHRL. (See Pl.'s Opp. at PDF p. 4.) Defendants argue that Plaintiff should be precluded from introducing new claims in opposition. (See Defs.' Reply at 2.) However, given Plaintiff's Pro se status, the Court will liberally construe the Complaint as asserting a claim under the NYCHRL. See McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 155-56 (2d Cir. 2017) (construing Pro se complaint to assert claims under NYSHRL and NYCHRL despite plaintiff's failure to check box on form). In any event, for the reasons set forth below, I recommend that his claims under the NYCHRL and NYSHRL be dismissed for failure to state a claim.
The NYSHRL § 296(1)(a) makes it “an unlawful discriminatory practice . . . [f]or an employer . . . because of an individual's . . . race, creed, color, national origin, citizenship . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” N.Y. Exec. Law § 296(1)(a). The statute also makes it an unlawful discriminatory practice “for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so.” N.Y. Exec. Law § 296(6). The NYCHRL makes it “an unlawful discriminatory practice [f]or an employer or an employee or agent thereof, because of the [protected characteristic] of any person, [t]o refuse to hire or employ or to bar or to discharge from employment such person; or [t]o discriminate against such person in compensation or in terms, conditions or privileges of employment.” N.Y.C. Admin. Code § 8-107(1)(a)(2)-(3).
Historically, NYSHRL claims were subject to largely the same analysis as claims under federal civil rights law, such as Title VII. However, in June 2019, the New York State Legislature amended the NYSHRL to require that courts construe that statute “liberally for the accomplishment of [its] remedial purposes . . . regardless of whether federal civil rights laws, including those laws with provisions worded comparably . . . have been so construed.” Cooper v. Franklin Templeton Invs., No. 22-CV-02763, 2023 WL 3882977, at *3 (2d Cir. June 8, 2023) (quoting N.Y. Exec. Law § 300 (2023)) (noting but not resolving impact of amendments since claims fell short under more liberal NYCHRL standard).Courts in this District have interpreted the amendment as “rendering the standard for claims closer to the standard of the NYCHRL[.]” Everett v. N.Y.C. Dep't of Educ., No. 21-CV-07043 (JPC), 2023 WL 5629295, at *11 (S.D.N.Y. Aug. 31, 2023) (quoting Livingston v. City of New York, 563 F.Supp.3d 201, 232 n.4 (S.D.N.Y. 2021) (alterations omitted); see also Doolittle v. Bloomberg L.P., No. 22-CV-09136 (JLR), 2023 WL 7151718, at *7 (S.D.N.Y. Oct. 31, 2023).
The amendments apply to claims accruing after the effective date of October 11, 2019. See Wellner v. Montefiore Med. Ctr., No. 17-CV-03479 (KPF), 2019 WL 4081898, at *5 n.4 (S.D.N.Y. Aug. 29, 2019). Accordingly, they apply to Plaintiff's claims.
The Court assumes, for purposes of this motion, that the amended NYSHRL standard is the same as standard under the NYCHRL without prejudice to Defendants' right to later attempt to demonstrate that the NYSHRL sets a more rigorous standard. See Wheeler v. Praxair Surface Techs., Inc., No. 21-CV-01165 (PAE), 2023 WL 6282903, at *11 (S.D.N.Y. Sept. 26, 2023). In any event, I find that Plaintiff has not stated a claim under even the standard of the NYCHRL.
“A court must construe all provisions of the NYCHRL broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably possible.” Perez v. Y & M Transp. Corp., 219 A.D.3d 1449, 1451 (2d Dep't 2023) (internal quotation marks and citation omitted). “Courts must analyze NYCHRL claims separately from any federal law claims and should construe the NYCHRL ‘liberally for the accomplishment of the uniquely broad and remedial purposes thereof.'” Bueno v. Eurostars Hotel Co., S.L., No. 21-CV-00535 (JGK), 2022 WL 95026, at *8 (S.D.N.Y. Jan 10, 2022) (quoting Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013)). A plaintiff need only show that he was “treated . . . less well, at least in part for a discriminatory reason.” Khwaja v. Jobs to Move Am., No. 19-CV-07070 (JPC), 2021 WL 3911290, at *3 (S.D.N.Y. Sept. 1, 2021) (quoting Mihalik, 715 F.3d at 110 n.8).
Plaintiff has not plausibly alleged that he has been treated less well because of his race, color, national origin or religion. As with his federal claims, Plaintiff's allegation that Americans who interviewed on the same day have started working is insufficient to plausibly allege the differential treatment was because of any protected characteristic. See, e.g., Brightman v. Physician Affiliate Grp. of N.Y., P.C., No. 20-CV-04290 (DLC), 2021 WL 1999466, at *8 (S.D.N.Y. May 19, 2021) (“Simply pleading that a male colleague, who may or may not have been similarly situated, was treated differently is not enough to plausibly allege that the differential treatment occurred because of [the plaintiff's] gender.”). Similarly, Plaintiff's conclusory allegations that Defendants did not accept his education credentials because they were from Catholic institutions also is insufficient even under the more liberal pleading standard. See Carter v. Verizon, No. 13-CV-07579 (KPF), 2015 WL 247344, at *5 (S.D.N.Y. Jan. 20, 2015) (“Plaintiff's conclusory allegations of disparate treatment discrimination are insufficient to nudge [his] claims across the line from conceivable to plausible to proceed . . . even under the more liberal standard afforded by the NYCHRL.”) (internal citation and quotation marks omitted).
Accordingly, I recommend that Plaintiff's NYSHRL and NYCHRL claims be dismissed.
Defendants also argue that the Individual Defendants cannot be liable as employers under the NYSHRL and that Plaintiff has failed to state a claim against them for aiding and abetting. (See Defs.' Mem. at 8.) Because I find that Plaintiff has failed to state a claim under the NYSHRL, he also has not stated a claim against the Individual Defendants on a theory of aiding and abetting liability. See Fierro v. City of New York, No. 20-CV-09966 (GHW), 2022 WL 428264, at *13 (S.D.N.Y. Feb. 10, 2022) (quoting Conklin v. County of Suffolk, 859 F.Supp.2d 415, 436 (E.D.N.Y. 2012)) (“[A]s the employee's liability necessarily hinges on that of the employer, the employer must be held liable for an individual to also be held liable under this provision.”).
V. Leave To Amend
In his March 1, 2024 declaration, Plaintiff seeks leave to amend if the Court grants Defendants' motion. (Pl.'s 3/1/24 Decl. at PDF p. 1, 13.) The Second Circuit has counseled strongly against the dismissal of claims with prejudice prior to “the benefit of a ruling” that highlights “the precise defects” of those claims. Lorely Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797 F.3d 160, 190-91 (2d Cir. 2015); see also Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991) (“It is the usual practice upon granting a motion to dismiss to allow leave to replead.”). Pro se litigants, in particular, “should be afforded every reasonable opportunity to demonstrate that [they have] a valid claim.” Edwards v. Middleton, No. 19-CV-01362 (VB), 2020 WL 4474682, at *7 (S.D.N.Y. Aug. 3, 2020) (quoting Matima v. Celli, 228 F.3d 68, 81 (2d Cir. 2000)). 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). However, “[l]eave may be denied for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” TechnoMarine SA v. Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (quoting McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007)) (internal quotation marks omitted).
Although the Court is skeptical that Plaintiff will be able to assert additional facts to allege that he was qualified for the YDS position, the Court recommends granting Plaintiff leave to amend, with the exception of his Title VII claim against the Individual Defendants, as such claim would be futile because there is no individual liability under that statute. See Vora v. N.Y.C. Dep't of Educ., No. 22-CV-10891 (PGG) (SDA), 2024 WL 1116312, at *14 (S.D.N.Y. Mar. 14, 2024) (denying leave to amend Title VII claims as futile against individual defendants because the statute “[does] not provide for individual liability”).
CONCLUSION
For the reasons set forth above, I respectfully recommend that the Court substitute the City as the proper defendant in place and stead of ACS, pursuant to Rule 21 of the Federal Rules of Civil Procedure; that Defendants' motion to dismiss, pursuant to Rule 12(b)(6), be GRANTED; and that Plaintiff be granted leave to amend his claims, except for his Title VII claim against the Individual Defendants.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from 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. 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, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1). Any requests for an extension of time for filing objections must be addressed to Judge Woods.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. 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).