Opinion
23-CV-4438 (PGG) (BCM)
12-18-2023
ROBIN A. WILLIAMS, Plaintiff, v. THE PLAZA REHABILITATION AND NURSING CENTER, et al., Defendants.
REPORT AND RECOMMENDATION TO THE HON. PAUL G. GARDEPHE
BARBARA MOSES, United States Magistrate Judge
Plaintiff Robin A. Williams, who is proceeding pro se, and in forma pauperis (IFP), alleges that defendants discriminated against her at her workplace on the basis of her "race, age, [and] gender." Compl. (Dkt. 1) at 2. However, she fails to identify her race, age, or gender, and provides no facts from which an inference could be made that she was discriminated against because of these characteristics. Moreover, plaintiff has failed to comply with two successive orders directing her to amend her pleading to clarify the facts on which her claims are based. Consequently, I recommend that the Complaint be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii) and Fed.R.Civ.P. 12(b)(6), and that plaintiff be given a final opportunity, within 30 days thereafter, to amend her pleading.
This action has been referred to me for general pretrial management (Dkt. 13) and for report and recommendation on any dispositive motion. (Dkt. 27.)
I. BACKGROUND
Plaintiff filed this action on May 18, 2023, naming four defendants: The Plaza Rehab & Nursing Center (The Plaza); John Taylor (identified as a "dietary supervisor"); Ricardo Graham (a "dietary aide"); and Crystal Roebuck (a "former dietary aide"). Compl. at 4. In her form complaint, plaintiff checked the box for federal question jurisdiction, id. at 2, and alleged that defendants violated "[m]y right that protects my race, age, gender, and anti-discrimination," id., on various dates between August 24, 2022 and February 21, 2023. Id. at 5.
Plaintiff does not clearly allege that she was employed by The Plaza. However, in the "facts" section of her Complaint she states that she "recently quit" due to her fear of defendant Taylor, whom she describes as her "supervisor." Id. at 5. Plaintiff alleges that Taylor attempted to punch her in the face on February 21, 2023, that he "told me not to speak when I wasn't talking," and that he "shamed" her, in unspecified ways, "everyday." Id. Plaintiff further alleges that defendant Graham, who was apparently a co-worker, "told the entire staff building that I'm having sexual relations with him," and that Graham's "co-worker, Aunt, or friend Dorian White also corroborates his story because this is every single day." Id. There are no factual allegations concerning defendant Roebuck. Instead, plaintiff alleges generally that "the co-workers" have mistreated her, including by saying "she sleeps with him that's why she lets him talk to her like that and" by "badgering me while I walk away." Id. Plaintiff attaches a right-to-sue letter from the United States Equal Employment Opportunity Commission (EEOC), dated March 10, 2023, stating that the agency "is closing this charge because the facts alleged in the charge fail to state a claim under any of the laws enforced by the EEOC." (Dkt. 1-1.)
On May 31, 2023, the Chief Judge granted plaintiff's IFP application. (Dkt.19.) On August 29, 2023, defendants appeared through counsel. (Dkt. 14.) By letter dated October 3, 2023 (Def. 10/3/23 Ltr.) (Dkt. 19), The Plaza sought leave to file a motion to dismiss the Complaint. The next day, October 4, 2023, plaintiff filed a Notice of Motion "asking the court for compensation" (Dkt. 23), and a supporting declaration (Williams Decl.) (Dkt 24), elaborating on her claims of workplace abuse. In her declaration, plaintiff attests that she has been "called mentally slow, a gay man, a prostitute, and I've been told to kill myself." Williams Decl. at 1. She adds that her supervisor (presumably Taylor) screamed, "you're not supposed to be here on earth" when plaintiff returned to work after a suspension. Id. at 2. Additionally, her supervisor "called me Spanish pretending to be black," and when she went to the gym, her supervisor "would tell people coworkers [sic] that I've gotten surgery." Id. The "majority of remarks" made by plaintiff's supervisor "were said while he would stare at my back." Id.
According to defendants, plaintiff - whom they refer to with the pronouns "she" and "her" - was employed at TCPRNC LLC d/b/a The Plaza Rehab & Nursing Center as a dietary aide, and was born in January of 1998, making her 25 years old. Def. 10/3/24 Ltr. at 1, 2.
By Order dated October 10, 2023 (10/10/23 Order) (Dkt. 28), I described the federal pleading standards and advised plaintiff that her allegations, "at present, are insufficient to state plausible claims of discrimination." 10/10/23 Order at 2. After setting forth the elements of the claims that plaintiff likely seeks to pursue (for employment discrimination based on race, age, and gender), I noted that she failed to state her age or identify her race, and likewise failed to allege that she was subject to any adverse employment action under circumstances giving rise to an inference of discrimination based on a protected characteristic. Id. at 2-3. I then granted plaintiff leave to amend her complaint "to detail her claims as specified above," and directed her to do so no later than November 9, 2023. Id. at 3.
November 9 came and went, but no amended complaint was submitted. On November 16, 2023, I extended plaintiff's deadline to amend until December 11, 2023, and advised that "[n]o further extensions will be granted." (Dkt. 30).
December 11 has now come and gone, but no amended complaint was submitted.
II. DISCUSSION
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a complaint contain "a short and plain statement of the claim showing that the pleader is entitled to relief," and Rule 8(d)(1) requires that each allegation be "simple, concise, and direct." As explained by the United States Supreme Court:
[A] complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." 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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A pleading that offers 'labels and conclusions' or 'a formulaic recitation of elements of a cause of action will not do,'" id. (citation omitted), and is subject to dismissal, pursuant to Rule 12(b)(6),for failure to state a claim upon which relief can be granted. Id. The Supreme Court also held that "a complaint [does not] suffice if it tenders 'naked assertion[s]' devoid of 'further factual enhancement.'" Id. (citation omitted). This plausibility standard applies to all federal complaints, including employment discrimination complaints. See EEOC v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 254 (2d Cir. 2014) (holding that a discrimination complaint "must at a minimum assert nonconclusory factual matter sufficient to nudge its claims across the line from conceivable to plausible to proceed") (cleaned up).
The federal courts are required to "read pro se complaints with 'special solicitude' and interpret them to raise the 'strongest arguments that they suggest[.]'" O'Neil v. Ponzi, 394 Fed.Appx. 795, 796 (2d Cir. 2010) (summary order) (quoting Triestman v. Federal Bureau of Prisons, 470 F.3d 471, 474-76 (2d Cir. 2006)). Nonetheless, even a pro se complaint must plead "enough facts to state a claim to relief that is plausible on its face." Id. (quoting Twombly, 550 U.S. at 570). Thus, although the court is "obligated to draw the most favorable inferences that [a pro se plaintiff's] complaint supports," it "cannot invent factual allegations that [s]he has not pled." Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
28 U.S.C. § 1915, which governs IFP proceedings, directs the court to "dismiss the case at any time" if it determines that the action "(i) is frivolous or malicious; (ii) fails to state a claim upon which relief may be granted; or (iii) seeks monetary relief again a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). The statute is phrased in mandatory terms. Thus, "[w]e must dismiss pro se complaints that are frivolous or fail to state a claim." O'Neil, 394 Fed.Appx. at 796 (upholding sua sponte dismissal of pro se complaint after plaintiff was given "an opportunity to amend her complaint" but failed to state facts entitling her to relief); see also Williams v. Rosenblatt Sec., Inc., 2014 WL 3765757, at *1 (S.D.N.Y. July 30, 2014) ("The Court has the authority to screen sua sponte an IFP complaint at any time and must dismiss the complaint, or portion thereof, that . . . fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.").
Even construed generously, as required, plaintiff's allegations are insufficient to state a plausible claim of discrimination on any of the grounds she lists. The Age Discrimination in Employment Act (ADEA) "prohibits discrimination in employment on the basis of age against persons aged 40 or older." D'Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 194 (2d Cir. 2007) (citing 29 U.S.C. §§ 623(a)(1), 631(a)). The ADEA does not prohibit discrimination against younger individuals. See Johnson v. Wendy's Corp., 2021 WL 243055, at *5 (S.D.N.Y. Jan. 25, 2021) (collecting cases). To establish a prima facie case of age discrimination, "a plaintiff must show membership in the protected age group, qualifications for the jobs at issue, an adverse employment action, and that the adverse action occurred under circumstances giving rise to an inference of discrimination." D'Cunha, 479 F.3d at 195. Plaintiff Williams does not allege that she is "aged 40 or older." Nor does she allege any facts suggesting that she was discriminated against based on her age.
To establish a prima facie case of race or gender discrimination under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., the plaintiff must show that she is "within a protected group," that she was "qualified for the position," that she was subject to an "adverse employment action," and that "the adverse action occurred under circumstances giving rise to an inference of discrimination based on membership in the protected group." Tappe v. All. Cap. Mgmt. L.P., 177 F.Supp.2d 176, 180 (S.D.N.Y. 2001). Plaintiff Williams does not identify her race (or even her gender), and does not explain what if any adverse employment action she experienced because of her race or gender. While a hostile work environment can constitute the required adverse employment action, see, e.g., Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir. 2002), the plaintiff must plead facts showing that the hostility "occurred because of her sex," id. (citing Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001); accord Redd v. New York Div. of Parole, 678 F.3d 166, 175 (2d Cir. 2012), or "because of her race." Richardson v. New York State Dep't of Corr. Serv., 180 F.3d 426, 440 (2d Cir. 1999), abrogated on other grounds, Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006); see also Khwaja v. Jobs to Move Am., 2021 WL 4927140, at *2 (S.D.N.Y. Mar. 26, 2021) (Pakistani plaintiff failed to state claim for discrimination based on race or national origin where complaint did not allege any bigoted statements concerning plaintiff's race or plaintiff's national origin), report and recommendation adopted, 2021 WL 3911290 (S.D.N.Y. Sept. 1, 2021); Welzel v. Bernstein, 436 F.Supp.2d 110, 121 (D.D.C. 2006) (plaintiff could not recover for derogatory comments concerning African Americans where "plaintiff is not African-American") (emphasis in original).
In her October 4, 2023 declaration, plaintiff makes a fleeting reference to a suspension, but does not explain the circumstances of that suspension or link it in any way to her race or gender.
Here, although plaintiff alleges in conclusory terms that defendants subjected her to race, age, and gender discrimination, she has failed to state facts which, if true, would entitle her to relief under the federal discrimination laws. Moreover, plaintiff has twice been directed to amend - and given judicial guidance concerning how to do so - but has ignored both deadlines. The Complaint should therefore be dismissed for failure to state a claim, pursuant to § 1915(e)(2)(B)(ii) and Fed.R.Civ.P. 12(b)(6), and for failure to comply with this Court's prior orders. See Davis v. Sedgwick Claims Mgmt. Servs., 2022 WL 153251, at *5 (S.D.N.Y. Jan. 18, 2022) (dismissing pro se complaint for failure to comply with prior sua sponte order outlining deficiencies and providing instructions for amended complaint).
However, the Second Circuit has cautioned against dismissing 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) (citation omitted). Therefore, plaintiff should once again be granted leave to amend - which will, in effect, give her a third, and final, opportunity to do so. See Davis, 2022 WL 153251, at *4 (granting plaintiff "one final opportunity to file, in good faith, an amended complaint that complies with the September 17, 2021 order").
III. CONCLUSION
For the foregoing reasons, I recommend, respectfully, that the Complaint be dismissed and that plaintiff be granted leave to file an amended complaint within 30 days of the dismissal order. Dated: New York, New York
NOTICE OF PROCEDURE FOR FILING OF 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). 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). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Paul G. Gardephe at 40 Foley Square, New York, New York 10007, and to the chambers of the undersigned Magistrate Judge. Any request for an extension of time to file objections must be directed to Judge Gardephe. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).