Summary
recommending dismissal of pro se plaintiff's FCRA claim against NYPD where the complaint “[did] not allege a single fact to support finding that the NYPD falls into one of these [three] categories”
Summary of this case from Ahmed v. MillerOpinion
21-CV-06476 (LJL)(SN)
06-21-2022
POINDEXTER O. EBALU, Plaintiff, v. NEW YORK CITY POLICE DEPARTMENT, Defendant.
REPORT AND RECOMMENDATION
SARAH NETBURN UNITED STATES MAGISTRATE JUDGE
TO THE HONORABLE LEWIS J. LIMAN:
Poindexter O. Ebalu alleges that the New York City Police Department (“NYPD”) disqualified him from employment in 2016 because of his race and national origin. The Court should dismiss Ebalu's complaint for failure to state a claim.
BACKGROUND
Ebalu alleges that in August of 2015, he started the hiring process to join the NYPD. ECF No. 8 (Am. Compl). Ex. 1. Two weeks later, he met with a background investigator, P.O. Meurer. Id. Ebalu subsequently passed a drug test and written and oral psychological exams. Id. Then, in January of 2016, he received an email stating that he had to take the “mini medical” to be eligible for appointment to the April 2016 police office class. Id. Ebalu then received a follow-up email stating that the prior email had been sent in error, and that he was not cleared for scheduling at that time. Id. Finally, in November of 2016, he received a letter stating that he was disqualified from the NYPD. Id. According to Ebalu, “[t]here was no valid reason for [his] disqualification which leads [him] to believe that [he] was discriminated against by the NYPD due to [his] race and national origin.” Id.
Ebalu brought this case on July 29, 2021. He filed a complaint, then an amended complaint, then a second amended complaint (which appears identical to the amended complaint). See ECF Nos. 2, 8, 22. The NYPD moved to dismiss, ECF No. 18, and Judge Nathan, then presiding, referred the motion to me for a report and recommendation, ECF No. 20.
Interpreted liberally, Ebalu claims: (1) race and national origin-based discrimination in violation of Title VII of the Civil Rights Act of 1964; (2) race-based, intentional employment discrimination in violation of 42 U.S.C. § 1981 (construed herein as brought pursuant to 42 U.S.C. § 1983); and (3) in his opposition, a violation of the Fair Credit Reporting Act. Defendant moves to dismiss the first two counts for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure, and the third as improperly asserted in opposition to the motion.
DISCUSSION
I. Standard of Review
To survive a Rule 12(b)(6) motion to dismiss, the complaint “must allege sufficient facts . . . to state a plausible claim for relief.” Johnson v. Priceline.com, Inc., 711 F.3d 271, 275 (2d Cir. 2013) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007)). The Court must “accept as true all factual statements alleged in the complaint and draw all reasonable inferences in favor of the non-moving party.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007). But the Court is “not bound to accept as true a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). On a Rule 12(b)(6) motion, the movant bears the burden of proof. Pearl River Union Free Sch. Dist. v. Duncan, 56 F.Supp.3d 339, 351 (S.D.N.Y. 2014). Because a motion to dismiss “challenges the complaint as presented by the plaintiff,” the Court “may review only a narrow universe” of materials in assessing whether the motion should be granted. Goel v. Bunge, Ltd., 820 F.3d 554, 559 (2d Cir. 2016). Courts may consider documents and exhibits attached to the complaint or incorporated by reference. Id.
The Court of Appeals has repeatedly instructed that “the submissions of a pro se litigant must be construed liberally and interpreted ‘to raise the strongest arguments that they suggest.'” Melendez v. Cablevision Sys. Corp., No. 17-cv-9161 (KBF), 2018 WL 2727890, at *2 (S.D.N.Y. June 6, 2018) (citing Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006)). But a pro se plaintiff is not excused from pleading enough facts to state a plausible claim for relief. Id. Merely reciting the elements of a cause of action supported only by conclusory statements will not suffice, and the Court will not assume the truth of mere legal conclusions. See Iqbal, 556 U.S. at 678-79. After distinguishing allegations from legal conclusions, courts determine “whether the ‘well-pleaded factual allegations,' assumed to be true, ‘plausibly give rise to an entitlement to relief.'” Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 679). Courts “are obligated to draw the most favorable inferences that [a pro se] complaint supports,” but “cannot invent factual allegations that [the plaintiff] has not pled.” Chavis v. Chappius, 618 F.3d 162, 170 (2d Cir. 2010).
II. Application
The NYPD argues that: (1) Ebalu's Title VII claim is not administratively exhausted, timely, or sufficiently well-pleaded; (2) his § 1981 claim is not timely or sufficiently well-pleaded; (3) his Fair Credit Reporting Act claim is improperly asserted for the first time in his opposition brief; and (4) the NYPD is an improper party to the proceeding and must be dismissed.
A. Title VII Claim
1. Administrative Exhaustion
To bring a lawsuit under Title VII, a plaintiff must first exhaust available administrative remedies by filing a timely complaint with the EEOC or an authorized state agency. 42 U.S.C. § 2000e-5(f)(1); Duplan v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018). Failure to exhaust administrative remedies under Title VII is an affirmative defense. Hardaway v. Hartford Pub. Works Dep't, 879 F.3d 486, 491 (2d Cir. 2018). “Dismissal under [Rule] 12(b)(6) is appropriate when a defendant raises a statutory bar [like failure to exhaust] as an affirmative defense and it is clear from the face of the complaint, and matters of which the court may take judicial notice, that the plaintiff's claims are barred as a matter of law.” Sewell v. Bernardin, 795 F.3d 337, 339 (2d Cir. 2015) (quoting Staehr v. Hartford Fin. Servs. Grp., 547 F.3d 406, 425 (2d Cir. 2008)).
Ebalu has not pleaded that he filed a charge with the EEOC or any appropriate authorized state agency. In fact, he admits that he never filed a charge of discrimination against the NYPD with the EEOC or any other government agency because he “did not know about the EEOC back in 2016.” Am. Compl. at 14. Because Ebalu did not exhaust his administrative remedies under Title VII, and this failure is clear from the face of the complaint, his Title VII claim should be dismissed.
2. Timeliness
Alternatively, Ebalu's Title VII claim could be dismissed as untimely. To seek relief under Title VII, a plaintiff must have filed a complaint with the EEOC or an authorized state agency within 300 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(1); see Legnani v. Alitalia Linee Aeree Italiane, S.P.A, 274 F.3d 683, 686 (2d Cir. 2001). Ebalu received the letter disqualifying him from the NYPD in November of 2016. Am. Compl. Ex. 1. To challenge the disqualification under Title VII, he needed to file a complaint with the EEOC or state equivalent by, at the latest, the end of September of 2017. He did not. As the time to file a timely administrative complaint regarding his disqualification has long since expired, any effort by Ebalu to cure this defect would be futile, and his Title VII claim is untimely.
3. Failure to State a Claim
Even if Ebalu had exhausted his administrative remedies and timely filed a complaint with the EEOC, he would still need to plausibly allege that his race or national origin was a motivating factor in the NYPD's decision to disqualify him as a candidate. Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 86 (2d Cir. 2015). Ebalu points to the lack of “valid reason” for his disqualification. This is not enough. Ebalu must “plausibly allege facts that provide ‘at least minimal support for the proposition that the employer was motivated by discriminatory intent.'” Id. at 86-87 (quoting Littlejohn v. City of New York, 795 F.3d 297, 311 (2d Cir. 2015)). He has failed to allege any facts at all that remotely suggest discriminatory intent in the January 2016 email he received about the “mini medical,” the follow-up email stating that the previous email had been sent in error, or the ultimate November 2016 letter disqualifying him from the NYPD. Ebalu's Title VII claim should be dismissed for failure to state a claim.
B. § 1981 Claim
1. Timeliness
“42 U.S.C. § 1983 provides the sole cause of action available against state actors alleged to have violated § 1981.” Duplan, 888 F.3d at 616. See Smalls v. Collins, 10 F.4th 117, 144-45 (2d Cir. Aug. 20, 2021) (affirming same). Claims brought under 42 U.S.C. § 1983 that accrued in New York have a statute of limitations of three years. See Jaghory v. N.Y. State Dep't of Educ., 131 F.3d 326, 331 (2d Cir. 1997); Owens v. Okure, 488 U.S. 235, 250-51 (1989). Section 1983 claims accrue when the plaintiff “knows or has reason to know of the injury which is the basis for the action.” Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980) (citation omitted).
Ebalu received the disqualifying letter in November of 2016. He commenced this action over a year and a half after the three-year statute of limitations had run, and his § 1981 claim should therefore be dismissed as time-barred.
2. Failure to State a Claim
Ebalu has failed to plausibly allege any evidence of discriminatory intent by the NYPD in its decision to disqualify him as a candidate. Like his Title VII claim, his § 1981 claim could also be dismissed for failure to state a claim. See Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010) (Title VII and § 1981 claims governed by the same standard).
C. Fair Credit Reporting Act Claim
In general, the NYPD is correct that “[n]ew claims not specifically asserted in the complaint may not be considered by courts when deciding a motion to dismiss.” Black Lives Matter v. Town of Clarkstown, 354 F.Supp.3d 313, 322 (S.D.N.Y. 2018) (alteration in original) (citation omitted). Because Ebalu is proceeding pro se, however, “the Court may consider new facts raised in opposition papers to the extent that they are consistent with the complaint, treating the new factual allegations as amending the original complaint.” Davila v. Lang, 343 F.Supp.3d 254, 267 (S.D.N.Y. 2018) (citing Walker v. Schult, 717 F.3d 119, 122 n.1 (2d Cir. 2013)). “A pro se plaintiff may not raise ‘entirely new' causes of action for the first time in his opposition papers, but the Court may consider new claims appearing for the first time in briefing if ‘the claims could have been asserted based on the facts alleged in the complaint.'” Id. (quoting Vlad- Berindan v. MTA N.Y.C. Transit, No. 14-cv-675 (RJS), 2014 WL 6982929, at *5 (S.D.N.Y. 2014)).
The Fair Credit Reporting Act (“FCRA”) “prescribes specific duties on three types of entities: (1) consumer reporting agencies; (2) users of consumer reports; and (3) furnishers of information to consumer reporting agencies.” Zlotnick v. Equifax Info. Servs., LLC, No. 21-cv-7089 (GRB)(JMW), 2022 WL 351996, at *1 (E.D.N.Y. Feb. 3, 2022) (citation omitted). Ebalu's complaint does not allege a single fact to support finding that the NYPD falls into one of these categories (or to support an FCRA claim more broadly). I therefore recommend that the Court dismiss Ebalu's FCRA claim. See Mathie v. Goord, 267 Fed.Appx. 13, 14 (2d Cir. 2008) (affirming that a new claim raised in opposition briefing as properly dismissed because the complaint did not “encompass that claim”).
D. Identifying the Proper Defendant
Finally, the NYPD argues that because the NYPD is not a proper party to this case and is the sole defendant, the case must be dismissed in its entirety. The NYPD is indeed “a non-suable agency of the City and is not a proper party.” Sanya Lanausse v. City of New York, No. 15-cv-1652 (LGS), 2016 WL 2851337, at *2 (S.D.N.Y. May 13, 2016). See Jenkins v. City of New York, 478 F.3d 76, 93 n.19 (2d Cir. 2007); N.Y.C. Charter § 396 (“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.”). The Court, however, has the discretion “to allow plaintiff the opportunity to amend his complaint to name the City of New York as a defendant.” Morris v. N.Y.C. Police Dep't, 59 Fed.Appx. 421, 422 (2d Cir. 2003). Given that Ebalu's claims fail for multiple reasons, I recommend that the Court not exercise this discretion. If Ebalu's claims were meritorious, however, the Court would not be obligated to dismiss the case solely on the basis that the NYPD is an improper party.
CONCLUSION
Because Ebalu fails to state any claim for which relief can be granted, I recommend that the Court grant Defendant's motion to dismiss and close this case. I further recommend that the Court deny leave to amend because any amendment would be futile.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Lewis J. Liman at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Liman. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).