Opinion
1:24-cv-02020 (JHR) (SDA)
03-29-2024
Natasha Itwaru, Plaintiff, v. New York City Department of Health & Mental Hygiene, Anita Richichi, Barbara Glove-Cox, Monica Pollack, Althea Jackson and Bella Morrow, Defendants.
ORDER TO AMEND
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE
Plaintiff Natasha Itwaru, who is proceeding pro se, commenced this action on March 17, 2024 (Compl., ECF No. 1) and thereafter paid the applicable filing fees. Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 1981, the Rehabilitation Act of 1973 and the Americans with Disabilities Act of 1990 (“ADA”) against Plaintiffs Defendants New York City Department of Health & Mental Hygiene (“DOHMH”) and DOHMH employees Anita Richici, Barbara Glover-Cox, Monica Pollack, Althea Jackson and Bella Morrow (collectively, the “Defendants”). Because Plaintiff names as Defendants individuals who work for a New York City municipality, the Court construes the Complaint as asserting constitutional claims under 42 U.S.C. § 1983. The Court also construes the Complaint as asserting state-law claims against both DOHMH and the individual defendants, under the New York State (“NYSHRL”) and New York City Human Rights Laws (“NYCHRL”). See Feingold v. New York, 366 F.3d 138, 158 n.19 (2d Cir. 2004) (although Title VII and the ADA do not provide for individual liability, an individual who participates in discriminatory conduct may be held liable under the NYSHRL and NYCHRL).
Section 1981 “does not provide a separate private right of action against state actors.” Duplan v. City of New York, 888 F.3d 612, 621 (2d Cir. 2018). Additionally, because the Complaint could be construed as an attempt to assert claims against the NYCDOHMH, itself, under 42 U.S.C. § 1983, the Court notes that Plaintiff may amend her Complaint to add the City of New York as a Defendant. See Ann v. Wiviott, No. 21-CV-09210 (LTS), 2021 WL 5450155, at *3 (S.D.N.Y. Nov. 19, 2021) (dismissing § 1983 claim against NYCDOHMH since “an agency of the City of New York, such as [Health & Mental Hygiene], is not an entity that can be sued[]” under § 1983); see also N.Y.C. Charter ch. 17, § 396 (“[A]ll 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.”).
For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 30 days of the date of this Order.
STANDARD OF REVIEW
District Courts have the authority to dismiss a complaint, even when the plaintiff has paid the filing fee, if it determines that the action is frivolous, see Fitzgerald v. First E. Seventh Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000) (per curiam) (citing Pillay v. INS, 45 F.3d 14, 16-17 (2d Cir. 1995) (per curiam) (holding that Court of Appeals has inherent authority to dismiss frivolous appeal)), or that the Court lacks subject matter jurisdiction. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 (1999). The Court also may dismiss an action for failure to state a claim, “so long as the plaintiff is given notice and an opportunity to be heard.” Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994) (citation and internal quotation marks omitted). The Court is obliged, however, to construe pro se pleadings liberally, see 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).
Rule 8 of the Federal Rules of Civil Procedure requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. 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. See id.
BACKGROUND
The following facts are drawn from the Complaint. Plaintiff appears to allege that her employer, DOHMH, discriminated against her based on her race, color, national origin and disability because she (1) is from Guyana and “Mix Race-West Indian,” and (2) suffers from chronic pain, depression, anxiety, asthma, hypertension and allergies. (Compl. at 4-5.) She asserts that Defendants did not promote her or accommodate her disability, harassed her, treated her differently from similarly situated employees and retaliated against her. (Id. at 5.)
The sole factual allegation that appears to support Plaintiff's claims concerns her applying for a position within DOHMH as a current DOHMH employee. She alleges that on September 24, 2021, she applied for the position of Bronx Bureau Director, and DOHMH did not hire her, even though she is “the only high rank[ing] employee of Guyanese/West Indian descent in the Bureau of Childcare.” (Compl. at 5.) In the fact section of the Complaint, Plaintiff refers the Court to an attachment for additional information; however it appears that but Plaintiff failed to attach the document. (Id.)
In the relief section of the Complaint, Plaintiff states that she seeks a promotion, accommodation for her disability and money damages. (Compl. at 6.)
DISCUSSION
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). This discrimination includes “‘not only overt discrimination but also practices that are fair in form, but discriminatory in operation' - that is, practices that have a ‘disparate impact'” on members of a class of people protected by the statute. See Mandala v. NTT Data, Inc., 975 F.3d 202, 207 (2d Cir. 2020) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971)). 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).
Where a Title VII plaintiff also asserts a Fourteenth Amendment equal protection claim under Section 1983, the “equal protection claim parallels [the] Title VII claim, except that a § 1983 claim, unlike a Title VII claim, can be brought against an individual.” Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72, 88 (2d Cir. 2015) (internal quotation marks and citation omitted).
The ADA prohibits discrimination in hiring decisions against any “qualified individual on the basis of disability.” 42 U.S.C. § 12112(a). The pleading requirements to state a claim of employment discrimination under the ADA are the same for such a claim brought under the Rehabilitation Act. See Davis v. N.Y.C. Dep' t of Educ., 804 F.3d 231, 235 (2d Cir. 2015).
Finally, the NYSHRL provides for individual liability for “any person” who aids and abets an employer's discrimination, N.Y.H.R.L. § 296(6), and the NYCHRL 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 chapter, or to attempt to do so.” N.Y.C. Admin. Code § 8- 107(6).
These anti-discrimination provisions prohibit employers from mistreating an individual because of the individual's protected characteristics, see 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. 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)).
Plaintiff does not appear to provide sufficient allegations to suggest that the DOHMH or the individual defendants discriminated against her because of her race, color, national origin or disability. The Court therefore grants Plaintiff leave to file an amended complaint to plead facts in support of her Title VII, Section 1983, ADA, Rehabilitation Act, NYSHRL and NYCHRL claims.
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, the Court grants Plaintiff 30 days' leave to amend her complaint to detail her claims.
In the “Statement of Claim” section of the amended complaint form (copy attached), 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 her 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.
CONCLUSION
The Court grants Plaintiff 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 30 days of the date of this order (i.e., no later than April 29, 2024), caption the document as an “Amended Complaint,” and label the document with docket number 24-CV-2020 (JHR) (SDA). An Amended Complaint for Employment Discrimination form is attached to this Order.
Plaintiff may receive court documents by email by completing the Consent to Electronic Service form, which is available at https://nysd.uscourts.gov/sites/default/files/2021-03/ConsentPro-SeEservice-form.pdf.
If Plaintiff consents to receive documents by email, Plaintiff will no longer receive court documents by regular mail. It appears that Plaintiff did complete the Consent to Electronics Service form in the Complaint (see Compl. at 9); however, Plaintiff must ensure to comply with the additional requirements including creating a PACER account.
If Plaintiff fails to file an amended complaint by the deadline set forth herein, the Court may recommend to District Judge Rearden that this action be dismissed.
SO ORDERED.