Opinion
No. 04 Civ. 9628 (RMB) (DFE).
January 19, 2006
DECISION AND ORDER
I. Background
On or about November 3, 2004, Yan Yam Koo ("Plaintiff") filed a form complaint pro se alleging that the New York City Department of Buildings ("Defendant") terminated him from his position as a construction inspector and retaliated against him because of his race and national original. (Complaint, dated November 3, 2004, at 4 ("I had been suddenly terminated without any reason by Department of Buildings on March 28, 2003. I had never received any salary and annual leave and 15% sick leave pay. I had been hired by . . . Department of Housing Preservation and Development on March 15, 2004 but [Defendant] refused to transfer my personnel file to HPD. . . . [Defendant] wrote letter to Labour department to stop my unemployment. All those action are under discrimination and retaliation. . . .") On or about March 29, 2005, Defendant submitted an answer. (Answer, dated March 28, 2005.)
On or about August 8, 2005, Defendant moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Defendant's Memorandum of Law in Support of its Motion for Judgment on the Pleadings, dated August 5, 2005.) On or about September 1, 2005, Plaintiff filed an opposition. (Affirmation in Opposition, dated 1, 2005.) Defendant submitted its reply on or about September 26, 2005. (Defendant's Reply Memorandum of Law in Further Support of its Motion for Judgment on the Pleadings, dated September 23, 2005.)
On October 6, 2005, Magistrate Judge Douglas F. Eaton, to whom the matter had been referred, directed Plaintiff to submit copies of Plaintiff's "alleged January 2004 letter to the EEOC Commissioner," which was referenced in Plaintiff's Opposition, as well as any documents Plaintiff received from the EEOC. (Memorandum and Order, dated October 6, 2005.) In a letter response, dated October 18, 2005, Plaintiff enclosed his letter to the Equal Employment Opportunity Commission, dated January 3, 2004. (Letter from Plaintiff, dated October 18, 2005; letter from Plaintiff, dated January 3, 2004 ("I hope you can do me fair justice to investigate into my cases. All I tell you is true.").) Also, at Magistrate Judge Eaton's request, Defendant submitted copies of documents filed in connection with Article 78 proceedings commenced by Plaintiff in the New York State Supreme Court, New York County.
Magistrate Judge Eaton also appears to have considered evidence submitted by Plaintiff by letter dated June 12, 2005. (Letter from Plaintiff, dated June 12, 2005.)
On December 1, 2005, Magistrate Judge Eaton issued a Report and Recommendation ("Report"), recommending that, although "plaintiff's Title VII claims of discrimination and retaliation are not time-barred," Defendant's motion for judgment on the pleadings should be granted. (Report at 5, 6-7 (Defendant "submits evidence tending to show [Plaintiff] was terminated because of poor performance" and Plaintiff "has not presented any evidence from which a rational jury could find that racial discrimination played a motivating role in [Defendant's] decision to fire him. For instance, he asserts that [his supervisor] hated Chinese people, but he offers no evidence other than [his supervisor's] army service in Vietnam. . . ."), 8 ("[P]laintiff has failed to meet his minimal burden of proving a prima facie retaliation case" because Plaintiff's "allegations are contradicted by the exhibits annexed to the Answer; plaintiff has failed to provide any evidence to rebut those documents.").) On or about December 15, 2005, Plaintiff submitted objections. (Affirmation in Opposition, dated December 15, 2005, at 1 ("At that time I said if I were not Chinese, I would not get that result. At that moment, everybody sighed and kept quiet. It is discrimination. . . .").)
For the reasons set forth below, the Court adopts in part and rejects in part the recommendations contained in Judge Eaton's Report, and denies Defendant's motion for judgment on the pleadings.
II. Standard of Review
The Court may adopt those portions of a magistrate's report to which no objections have been made and which are not facially erroneous. Thomas v. Arn, 474 U.S. 140, 149 (1985); see also Santana v. Kuhlman, 232 F.Supp. 2d 154, 157-58 (S.D.N.Y. 2002). The Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also Fed.R.Civ.P. 72(b); Grassia v. Scully, 892 F.2d 16, 19 (2d Cir. 1989); DeLuca v. Lord, 858 F.Supp. 1330, 1345 (S.D.N.Y. 1994).
Where, as here, the plaintiff is proceeding pro se, "leniency is generally accorded." See Bey v. Human Res. Admin., No. 97 Civ. 6616, 1999 WL 31122, at *2 (E.D.N.Y. Jan. 12, 1999). The court will "read [the pro se party's] supporting papers liberally, and will interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994).
III. Analysis
The facts as set forth in the Report are incorporated herein unless otherwise noted.
As to any portion of the Report to which no objections have been made, the Court concludes that the Report is not clearly erroneous. See Pizarro, 776 F.Supp. at 817. Any of Plaintiff's Objections not specifically addressed in this Order have been considered de novo and rejected.
Magistrate Judge Eaton correctly concluded that Plaintiff's Title VII claims are not time-barred. (Report at 5.) "Under Title VII, . . . a claim must be filed within 300 days from the adverse employment action," and Plaintiff's "January 3, 2004 letter qualifies as a `charge' within the meaning of 42 U.S.C. § 2000e-5(b)." (Report at 4-5; see Thompson v. Fed. Reserve Bank of New York, 242 F.Supp.2d 368, 370-71 (S.D.N.Y. 2003) (citingEdelman v. Lynchburg College, 535 U.S. 106, 115-16 (2002)).)
Plaintiff's discrimination claim should not be dismissed under Rule 12(c). "A complaint may be dismissed under Rule 12(c) only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. This standard applies with particular strictness where the plaintiff files a pro se complaint alleging civil rights violations. Indeed, [the United States Court of Appeals for the Second Circuit] has repeatedly warned that the pleading requirements in discrimination cases are very lenient, even de minimis." Deravin v. Kerik, 335 F.3d 195, 200 (2d Cir. 2003).
Magistrate Judge Eaton found that "plaintiff has met his minimal burden of establishing a prima facie case" of discrimination because: "A. He is a Chinese man. B. There is some evidence that he was performing his duties satisfactorily. . . . C. He was discharged. D. He alleges that DOB gave different treatment to him and to . . . a Korean employee." (Report at 6.) This is more than sufficient to allow Plaintiff's claim of discrimination to survive a motion to dismiss under Rule 12(c).See Swierkiewicz v. Sorema, 534 U.S. 506, 510-15 (2002) ("[A]n employment discrimination plaintiff need not plead a prima facie case of discrimination . . . to survive respondent's motion to dismiss."). Plaintiff's allegations give Defendant "fair notice of what petitioner's claims are and the grounds upon which they rest." See id. at 514; see also Abdrabo v. State of N.Y. Worker Comp. Bd., No. 03, Civ. 7690, 2005 WL 1278539, at *3 (S.D.N.Y. May 27, 2005);Braphman-Bines v. New York City Police Dep't, No. 03 Civ. 10207, 2005 WL 22843, at *3-5 (S.D.N.Y. Jan. 3, 2005).
Plaintiff's retaliation claim also survives. "Section 704(a) of Title VII makes it unlawful to retaliate against an employee, `because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.'"Deravin, 335 F.3d at 203-04 (quoting 42 U.S.C. § 2000e-3(a)). Here, Plaintiff alleges that, after he was fired, he filed an internal complaint of discrimination. He states that Defendant then retaliated against him in three ways: (a) by failing to pay his last paycheck and his unused sick and holiday leave; (b) by denying him unemployment benefits; and (c) by refusing to transfer his personnel file to his new employer, the Department of Housing Preservation and Development. (Report at 8.) These allegations are sufficient for Plaintiff's retaliation claim to move forward. See Deravin, 335 F.3d at 200.
IV. Conclusion and Order
The Court adopts in part and rejects in part Magistrate Judge Eaton's Report, and for the reasons stated herein and therein, denies Defendant's motion for judgment on the pleadings. The parties and counsel are directed to appear at a status/settlement conference with the Court on February 15, 2006, at 2:30 p.m., in Courtroom 706 of the Thurgood Marshall Courthouse, 40 Centre Street, New York, New York 10007. The Court directs the parties to engage in good faith settlement negotiations prior to the conference with the Court.